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THE  CONTRIBUTIONS  OF 

THE  LANDED  MAN  TO 

CIVIL  LIBERTY 


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mtlUamjs  College 

DAVID  A.  WELLS  PRIZE  ESSAYS 


l^umlier  l 

THE   COKTRIBUTIOI^S  OF 

THE  LANDED  MAN  TO 

CIVIL  LIBERTY 

BY 

ELWIN  LAWRENCE  PAGE,  B.A. 


PRINTED  FOR  THE 

DEPARTMENT  OF  POLITICAL  SCIENCE 

OF  WILLIAMS  COLLEGE 

^V  ^U  &i)iersilie  press,  Camiinliire 

1905 


"3  4  3" ,  ^  <»  4  5- 


CX)PYIUGHT  1905  BY  HENHT  LOOMIS  NELSON 
ALL  BIQHXS  BESEBVED 


INTRODUCTION 

This  is  the  first  essay  of  a  series  to  be  known 
as  "David  A.  Wells  Prize  Essays."  These 
essays  are  to  be  printed  under  the  direction 
and  editing  of  the  David  A.  Wells  Professor 
of  Political  Science,  of  Williams  College,  and 
one  is  to  appear  during  each  year  following 
an  award  of  the  prize.  The  prize  is  $500 
*'in  gold  coin  of  standard  weight  and  fineness, 
or  in  the  form  of  a  medal  of  gold  suitably  in- 
scribed, at  the  option  of  the  recipient."  Com- 
petition is  confined  to  those  who  are  members 
of  the  Senior  Class  when  the  subject  for  an 
essay  is  announced,  and  to  graduates  of  not 
more  than  three  years'  standing. 

The  following  provision  of  the  will  of  the 
late  David  A.  Wells,  the  founder  of  the  com- 
petition, governs  the  committee  in  the  selec- 
tion of  subjects  and  in  the  consideration  of 
essays : 

"No  subject  shall  be  selected  for  competi- 
tive writing  or  investigation  and  no  essay  shall 
be  considered  which  in  any  way  advocates  or 


Ti  INTRODUCTION 

defends  the  spoliation  of  property  under  form 
or  process  of  law;  or  the  restriction  of  com- 
merce in  times  of  peace  by  Legislation,  except 
for  moral  or  sanitary  purposes;  or  the  enact- 
ment of  usury  laws;  or  the  impairment  of  con- 
tracts by  the  debasement  of  coin;  or  the  issue 
and  use  by  Government  of  irredeemable  notes 
or  promises  to  pay  intended  to  be  used  as  cur- 
rency and  as  a  substitute  for  money;  or  which 
defends  the  endowment  of  such  *  paper/  'notes' 
and  'promises  to  pay*  with  the  legal  tender 
quality." 

HENRY  LOOMIS  NELSON, 
David  A.  Wells  Professor  of  Political  Science. 

Williams  College, 
WiLLiAMOTOWN,  Mass.,  April  1,  1905. 


AUTHOR'S  NOTE 

As  long  as  some  of  the  earlier  phases  of  Eng- 
lish constitutional  history  remain  so  obscure 
as  to  be  the  subjects  of  diverse  opinions,  no 
study  of  a  special  influence  in  that  history  can 
be  definitive.  Yet  it  may  prove  of  some  inter- 
est, if  not  of  profit,  to  get  even  an  incomplete 
view  of  the  parts  played  by  different  classes 
of  men  in  the  development  of  free  institutions. 
This  paper  is  an  attempt  to  set  forth  some  of 
the  main  contributions  of  the  landed  man  to 
constitutional  growth.  The  author  makes  no 
claim  to  originality;  he  has  merely  made  a 
brief  review  of  the  salient  features  of  consti- 
tutional history  and  collated  facts  stated  and 
opinions  expressed  by  others,  but  in  such  re- 
lation, he  trusts,  that  the  importance  of  this 
particular  influence  may  be  somewhat  ap- 
parent. No  attempt  has  been  made  to  trace 
any  other  influence,  much  less  to  compare  this 
with  any  other.  The  result  is  a  lack  of  pro- 
portion of  which  the  reader  will  scarcely  need 
to  be  warned.     If  the  author  succeeds,  how- 


ym  AUTHOR'S  NOTE 

ever,  in  emphasizing  the  fact  that  to  the  landed 
man  we  owe  a  very  large  share  of  the  liberty 
we  now  enjoy,  the  purpose  of  this  study  will 
be  answered. 

The  author  desires  to  make  acknowledge- 
ment for  valuable  criticism  and  suggestions 
received  from  Professor  Henry  Loomis  Nel- 
son, of  Williams  College,  and  to  Dr.  W.  B. 
Munro,  late  of  the  same  college,  but  now  of 
Harvard  University.  He  is  indebted  to  Arthur 
H.  Chase,  Esq.,  librarian  of  the  New  Hamp- 
shire State  Library,  for  courtesies  extended, 
also  to  Hon.  Charles  R.  Coming,  of  Concord, 
New  Hampshire,  for  access  to  his  private  li- 
brary. The  libraries  of  Harvard  College  and 
the  Harvard  Law  School  have  also  been  freely 
drawn  upon.  The  works  consulted  are  amply 
cited  in  the  foot-notes. 


CONTENTS 

I.  THE   ANGLES  AND    SAXONS    ON  THE 

CONTINENT 1 

n.  THE   ANGLO-SAXONS  IN  ENGLAND      .  16 

m.  THE    NORMAN    CONQUEST  AND    FEU- 

DAUZATION 43 

IV.    JUDICIAL  REFORMS  — TRIAL  BY  JURY  68 

V.  THE   STRUGGLE   FOR  MAGNA  CARTA.  100 

VI.  THE   BEGINNINGS   OF  PARLIAMENT    .  131 

Vn.   THE  GROWTH  OF  PARLIAMENT  .         .  176 

Vni.  THE  FINAL  STRUGGLE   FOR  LIBERTY  218 


THE  ANGLES  AND  SAXONS  ON  THE  CONTINENT 

The  roots  of  English  institutions  strike  under 
the  Channel  and  into  Continental  soil.  Here, 
among  the  German  tribes  whose  hardy  sons  in 
the  fifth  century  began  to  conquer  the  island, 
we  must  seek  the  origin  of  those  customs  whose 
growth,  as  influenced  by  the  landowner,  we  are 
to  attempt  to  trace.  Of  Celtic  and  Roman  in- 
stitutions nothing  of  importance  is  discernible 
in  later  England.  The  inhabitants  of  the  island 
at  the  close  of  the  Roman  occupation,  says 
Lappenberg,  were  not  Romanized;  on  the 
contrary,  the  descendants  of  the  conquerors 
had  become  assimilated  to  the  Britons.*  Rome 
never  wholly  prevailed,  never  entirely  expelled 
the  old  British  institutions.  Whatever  savored 
of  Rome  was  annihilated  by  the  gradual  wane 
of  the  imperial  rule.  The  Saxons  found  only 
Celtic  institutions  and  allowed  only  the  polit- 
ically unimportant  of  these  to  survive.'^    Free- 

^  1  Lappenberg,  History  of  England  under  the  Anglo-Saxon 
Kings  (Thorpe's  Translation,  Otte's  revised  ed.  London, 
1881),  157.  ^  2  Lappenberg,  430. 


iV 


2    ANGLES  AND  SAXONS  ON  THE  CONTINENT 

man  argues  the  practical  extermination  of  the 
Britons  by  the  Saxons  and  the  extinction  thereby 
of  all  Romano-Celtic  institutions.*  Stubbs 
concludes  that  "the  Teutonic  element  is  the 
paternal  element  in  our  system,  natural  and 
political,"*  and  that  the  English  possess  "the 
elements  of  primitive  German  civilization  and 
the  common  germs  of  German  institutions."' 
There  are  those  who  take  the  contrary  position 
that  the  Teutonic  influences  are  not  predomi- 
nant, but  they  have  their  case  yet  to  prove.  In 
accordance  with  what  seems  the  more  accepted 
view,  we  will  begin  our  study  with  the  German 
origins. 

There  are  given  us  two  sources  of  written 
information  concerning  our  German  ancestors 
and  their  customs.  These  are  the  Commentarii 
de  Bello  Gallico  of  Caesar  and  the  treatise  De 
Situ,  Moribus  et  Populis  Germaniae  of  Tacitus. 
Let  us  inquire  what  they  have  to  tell  us,  for 
some  knowledge  of  the  system  they  disclose 
will  be  of  value  in  following  later  developments. 

In  the  first  place  we  shall  be  curious  as  to 
the  nature  of  property  in  land,  for  it  is  about 

*  1  Freeman,  Norman  Conquest,  16-20. 
2  Stubbs,  Sded  Charters  (8th  ed.)  3. 

*  Stubbs,  ConstUtdional  History  of  England,  §  1. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT  3 

the  landowner  that  our  interest  at  present 
centers.  Caesar  notes  that  the  Germans  de- 
voted their  whole  life  to  hunting  and  warfare.* 
They  did  not  give  close  attention  to  agriculture, 
and  most  of  their  food  consisted  of  milk,  cheese, 
and  flesh.  Nobody  had  a  field  with  a  fixed 
boundary,  but  the  magistrates  and  chiefs  each 
year  gave  the  tribes  and  families  as  much  land 
as  they  thought  fit  and  the  year  after  forced 
them  to  move.^  Concerning  the  Suevi,  the  most 
warlike  nation,  Caesar  has  much  the  same  things 
to  relate.  They  had  no  private  and  separate 
fields,  nor  were  they  permitted  to  remain  in 
one  place  for  the  purpose  of  residence  more 
than  one  year.  Like  the,  rest  of  the  Germans, 
they  did  not  live  much  on  corn,  but  for  the  most 
part  on  milk  and  flesh.  They  were  given  greatly 
to  hunting.' 

If  we  are  to  accept  this  account  as  true,  we 
must  conclude  that  in  the  first  century  before 
Christ  the  Germans  were  a  practically  nomadic 
race,  for  only  as  such  would  they  give  almost 
no  attention  to  agriculture,  have  no  fixed 
bounds  to  their  fields,  live  on  the  produce  of 
the  herd,  spend  their  whole  life  in  hunting  and 

*  Caesar,  De  Bello  GaUico,  vi,  21. 
2  Ibid,  vi,  22.  8  iijjd  i^^  I 


4  ANGLES  AND  SAXONS  ON  THE  CONTINENT 

warfare,  and  yearly  move  from  place  to  place. 
If  they  were  nomadic,  there  would  naturally 
be  no  property  in  land,  and  the  yearly  allot- 
ment would  be  merely  a  matter  of  temporary 
convenience  and  conducive  to  domestic  peace, 
not  an  indication  of  ownership  in  anybody. 

But  the  correctness  of  Caesar's  story  at  this 
point  is  open  to  serious  questioning.  Caesar 
himself  raises  a  doubt  in  our  minds,  for  he  tells 
us  that  both  the  Germans  in  general  and  the 
Suevi  in  particular  were  accustomed  to  lay  waste 
their  borders  as  widely  as  possible,  so  that  they 
might  be  protected  from  hostile  incursion.* 
Such  a  defense  would  hardly  be  needed  by  a 
nomadic  people,  and  the  German  states  must 
have  had  fairly  settled  seats  or  they  would 
never  have  made  use  of  it.  A  century  later 
than  Caesar,  another  historian  gives  us  a  picture 
of  the  Germans  which  is  not  that  of  nomads. 
As  one  hundred  years  could  hardly  measure 
the  transition  from  one  state  to  another,  we 
have  another  reason  for  concluding  that  Caesar 
erred,  and  that  we  must  not  draw  inferences 
from  him  as  to  German  occupation  and  owner- 
ship of  land.  Dr.  Stubbs  thinks  that  Caesar  de- 
pended more  upon  hearsay  than  upon  personal 

*  Ceesar,  De  Bello  OaUico,  vi,  23,  iv,  3. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT  5 

observation,  and  that  certain  comparatively 
primitive  German  conditions  were  in  his  mind 
exaggerated  by  contrast  with  Roman  institu- 
tions.* 

We  therefore  resort  to  Tacitus  for  informa- 
tion as  to  ownership  of  land  among  the  Germans; 
but  not  even  here  do  we  find  an  answer  to  our 
question.  The  later  writer  was  subject  to  some- 
what the  same  limitations  as  was  Caesar.  While 
he  may  have  spoken  after  a  closer  and  more 
personal  study  of  the  Germans  than  did  his  pre- 
decessor, we  must  remember,  with  Dr.  Stubbs, 
that  quite  unintentionally  he  would  lay  undue 
emphasis  upon  features  of  Teutonic  life  which 
contrasted  with  Roman  customs.  The  gen- 
erality and  vagueness  of  the  record  should  also 
make  us  cautious.^ 

Tacitus,  while  telling  us  that  the  food  of  the 
Germans  consisted  of  wild  fruit,  flesh,  or 
thickened  milk,^  gives  us  a  picture  of  a  more 
agricultural  people  than  does  Csesar.  We  learn 
that  while  there  were  no  cities  or  compact  towns 
there  were  villages,*  which  indicates  a  settled 

*  Stubbs,  Sel  ChaH.  (8th  ed. )  52. 
2  Ibid.  54. 

'  Tacitus,  De  Situ,  Morihus  el  Popvlis  Germaniae,  c.  23. 

*  Ibid.  c.  16. 


6     ANGLES  AND  SAXONS  ON  THE  CONTINENT 

people,  not  nomads.  The  land  must  have  been 
cultivated,  for  caves  were  used  for  storing  the 
fruits  of  the  earth,  ^  and  serfs  paid  a  sort  of  rent 
in  grain.  ^  Among  a  people  given  in  some  degree 
to  agriculture  we  look  for  a  system  of  land- 
ownership,  but  while  the  Germans  undoubtedly 
had  a  land-law,  we  meet  difficulties  in  defining 
it  satisfactorily. 

Upon  a  passage  of  Tacitus  and  a  number  of 
continental  charters,  a  theory  has  been  built  up, 
which,  under  the  name  of  the  "mark  system," 
has  met  with  a  very  general  acceptance  for  a  half 
century.  Without  going  deeply  into  detail,  it 
may  be  enough  to  say  that  the  distinctive  feature 
of  this  system,  as  it  affects  our  inquiry,  is  com- 
munal ownership  of  the  land.  Let  us  look  at  the 
words  of  Tacitus.  "Agri  pro  numero  cultorum 
ab  universis  vicis  occupantur,  quos  mox  inter  se 
secundum  dignationem  partiuntur.  Facilitatem 
partiendi  camporum  spatia  praestant.  Arva  per 
annos  mutant,  et  superest  ager."  ^  From  these 
words  there  has  been  argued  an  ownership  of 
land  by  village  communities  at  a  period  prior 
to  that  of  individual  ownership,  and  an  annual 
apportionment  for  purposes  of  cultivation.  But 

*  Tacitus,  De  SUu,  Moribus  et  PofuLis  Germaniae,  c.  16. 
'  Ibid.  c.  25.  «  Ibid.  c.  26. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT  7 

it  is  to  be  observed  that  no  word  directly  in- 
dicating property  is  used.  The  land  was  occupied 
by  villages  in  proportion  to  the  number  of  culti- 
vators, and  was  divided  according  to  the  rank 
of  the  occupants.  It  should  be  no  cause  of  sur- 
prise to  find  the  cultivators  collected  into  vil- 
lages, and  we  are  not  to  jump  to  the  conclusion 
that  the  villages  owned  the  land.  Nor  is  it  strange 
that  there  should  be  some  proportion  between 
the  number  of  cultivators  and  the  size  of  the 
plots  they  occupy;  that  would  seem  a  natural 
economic  arrangement  in  a  thinly  settled  coun- 
try. As  Tacitus  put  it,  "Facilitatem  partiendi 
camporum  spatia  praestant."  Too  much  weight 
should  not  be  given  the  words  partiuntur  and 
partiendi  ;  they  do  not  necessarily  indicate  a 
frequent  and  active  dividing,  and  may  refer 
only  to  the  settled  division  which  Tacitus  saw. 
That  the  Germans  changed  their  arable  from 
year  to  year  may  point  to  a  mere  rotation  of 
crops  and  fallow,  which  would  naturally  result 
in  land  "left  over." 

We  have  already  rejected  Caesar  as  a  very 
trustworthy  authority  as  to  property  in  land, 
but  even  accepting  his  statements  that  the  mag- 
istrates and  chiefs  each  year  assigned  to  tribes 
and  families  as  much  land  as  they  saw  fit,  and 


8  ANGLES  AND  SAXONS  ON  THE  CONTINENT 

forced  them  to  move  the  next  year,*  and  that  the 
Suevi  were  not  permitted  to  remain  in  one  place 
for  purposes  of  cultivation  more  than  one  year,^ 
—  even  accepting  these  statements  to  indicate 
anything  as  to  landownership,  do  they  not  prove 
ownership  by  the  chiefs  of  the  cantons  and  ar- 
bitrary disposal  as  the  chiefs  think  fit,  as  readily 
as  they  prove  communal  ownership  ?  ^ 

The  theory  of  property  in  the  village  com- 
munity seems,  therefore,  an  inference  which, 
to  say  the  least,  it  is  quite  unnecessary  to  draw 
from  the  ancient  writers.  Within  a  few  years 
the  doctrine  has  been  ably  criticised,  and  is  no 
longer  to  be  accepted  as  a  matter  of  course. 
M.  Fustel  de  Coulanges,  in  The  Origin  of  Pro- 
perty in  Land,  examines  the  few  charters  upon 
which  the  theory  is  based,  and  considers  the 
analogies  supposed  to  be  found  among  all  races. 
His  conclusion  is  that  it  rests  upon  entirely 
insufficient  historical  grounds.  Professor  Mait- 
land  has  given  the  subject  some  attention,*  and 
finds  "no  proof  that  among  the  Germans  the 
land  was  continuously  tilled  before  it  was  owned 

*  Caesar,  De  BeUo  GaUico,  vi,  22. 
2  Ibid,  iv,  1. 

^  Fustel  de  Coulanges,  Origin  of  Property  in  Land  (London, 
1892),  5. 

*  Maitland,  Domesday  Book  and  Beyond,  340-356. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT  9 

by  individuals  or  by  those  small  groups  that 
constituted  the  households."  *  The  evidence 
points,  he  thinks,  to  some  cooperation  in  agri- 
culture, but  not  to  a  communistic  division  of 
the  fruits.  The  community  did  not  reallot  arable 
strips;  it  sought  only  to  regulate  the  rotation 
of  crop  and  fallow.  Meadows,  pasture,  and 
woodland  were  indeed  often  held  in  common, 
but  rights  of  common  may  be  appurtenant  to 
individual  property  and  partake  of  the  nature 
of  individual  property.'  Professor  Maitland 
ventures  to  guess  that  if  there  was  any  "mark 
community,"  it  was  not  a  village  community, 
but  one  whose  members  dwelt  in  many  differ- 
ent villages  and  exercised  rights  in  common 
over  woodland  which  lay  between  those  villages, 
and  that,  if  any  trace  of  such  a  community  is 
to  be  found  in  England,  it  is  in  the  common  of 
vicinage.'  But  "  we  are  among  guesses  and  little 
has  as  yet  been  proved,"  *  hence  it  would  be 
rash  to  declare  what  was  the  German  system 
of  property  in  land.  Though  it  follows  that  we 
can  say  nothing  of  the  contributions  of  the  landed 
man  to  civil  liberty  in  the  Teutonic  period,  it 
will  nevertheless  be  useful  to  get  a  brief  view 

*  Maitland,  Domesday  Book  and  Beyond,  346. 

2  Ibid.  346-348.  '  Ibid.  354,  355.  *  Ibid.  340. 


10    ANGLES  AND  SAXONS  ON  THE  CONTINENT 

of  Germanic  governmental  institutions,  for  we 
wish  to  know  what  it  was  upon  which  the  land- 
owner later  exerted  his  influence.  For  this  we 
return  to  Caesar  and  to  Tacitus. 

We  naturally  look  first  for  the  sovereign. 
Caesar  tells  us  that  in  times  of  war  magistrates 
were  chosen  with  power  of  life  and  death,  but 
that  in  times  of  peace  there  were  no  common 
magistrates,  the  chiefs  of  the  various  subdi- 
visions administering  justice.*  Tacitus  speaks 
of  kings,  2  but  their  field  of  influence  was  very 
limited.  They  are  nowhere  mentioned  as  mili- 
tary commanders;  indeed,  kings  were  chosen 
for  their  nobility,  generals  for  bravery.  The 
kings  are  explicitly  said  not  to  have  an  un- 
limited or  free  power.'  In  the  council  of  the 
state  they  had  no  superior  voice,  for  there 
they  were  heard  only  in  proportion  to  their 
power  of  persuasion,  not  of  commanding.* 
They  might  receive  a  part  of  the  fine  of  the 
criminal,  but  we  do  not  hear  of  their  having 
any  preeminent  position  in  the  administration 
of  justice."  Except  to  a  king  of  unusual  endow- 
ments, the  oflfice  meant  no  more  than  a  simple 

*  Csesar,  De  BeUo  Gallico,  vi,  23. 

*  Tadtus,  Germ.  cc.  7, 11, 12.  »  Ibid.  c.  7. 

*  Ibid.  c.  11.  •  Ibid.  c.  12. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT    11 

honor.*  In  other  words,  the  "king,"  if  he  were 
a  surpassingly  able  man,  might  make  himself  a 
real  king,  but  Tacitus  does  not  suggest  his  ever 
being  more  than  a  mere  figure-head  for  the 
nation.  Furthermore,  the  office  was  not  uni- 
versal among  the  German  states,  for  we  hear  of 
"tribes  which  are  under  kings,"  in  apparent 
distinction  from  those  which  are  not.*  Bede, 
writing  of  a  missionary  journey  in  the  year  690 
to  Friesland,  said:  "The  Old  Saxons  have  no 
king,  but  a  number  of  satraps  over  their  state, 
which  satraps  upon  the  happening  of  war  cast 
lots.  While  the  war  lasts  they  follow  as  general 
the  one  upon  whom  the  lot  falls,  and  him  they 
obey;  but  as  soon  as  the  war  is  over  all  the 
satraps  again  become  of  equal  power." '  We  are 
therefore  constrained  to  the  opinion  that  if  in 
some  tribes  the  Germans  did  have  "kings,"  they 
were  merely  imitations  of  the  kings  of  their 
neighbors,  bearing  but  an  empty  name.*  There 
was  no  king  in  the  sense  in  which  the  term  is 
commonly  used.  We  therefore  look  elsewhere 
for  the  sovereign  power,  and  find  it  seemingly 
in  the  people. 

*  Stubbs,  Const.  Hist.  §  15.  '  Taxatus,  Germ.  c.  25. 
'  Bede,  Historia  Ecclesiastica  Gerdis  Anglorum,  v,  10. 

*  Stubbs,  Sd.  Chart.  (8tli  ed.)  4. 


12    ANGLES  AND  SAXONS  ON  THE  CONTINENT 

In  public  business  the  voice  of  the  people 
was  finally  decisive.  For  convenience'  sake  the 
chiefs  alone  passed  upon  the  smaller  affairs, 
but  concerning  the  greater  all  consulted  after 
the  chiefs  had  first  considered  them.  The  king 
or  chief  might  have  a  superior  influence  in  the 
council  only  by  his  powers  of  persuasion.  Those 
powers  might  depend  a  great  deal  upon  his 
rank,  the  liking  in  which  he  was  held,  or  his 
prowess  in  war,  as  well  as  upon  his  wisdom 
and  eloquence;  but  nobody  in  council  spoke 
with  authority  which  must  be  obeyed.  The 
people  might  express  their  displeasure  by  groans 
or  their  pleasure  by  the  clashing  of  spears.  The 
council  sat  armed.*  This  suggests  that  the 
"sovereign  people"  comprised  only  the  fighting 
men,  a  thing  easily  understood  in  so  primitive 
a  race.  "They  do  no  business  either  public  or 
private  unless  they  are  armed.  But  it  is  not  the 
custom  for  any  one  to  assume  arms  before 
the  state  has  approved  his  ability.  Then  in  the 
council  itself  either  one  of  the  chiefs,  or  the  fa- 
ther or  a  relative,  arms  the  youth  with  shield 
and  javelin.  This  among  them  is  the  *toga,' 
and  this  the  first  honor  of  young  manhood; 
before  this  they  are  considered  a  part  of  the 
home,  afterwards  a  part  of  the  state."  ' 

*  Tacitus  Germ.  c.  11.  '  Ibid.  c.  IS. 


ANGLES  AND  SAXONS  ON  THE  CONTINENT     13 

This  popular  assembly  of  armed  men,  be- 
sides performing  the  administrative  and  legis- 
lative functions  which  involved  consultation, 
acted  as  a  court  of  justice  in  capital  cases.  Pen- 
alties were  proportioned  to  the  offense,  and 
ranged  from  hanging  for  traitors  to  fines  in 
horses  and  cattle  for  smaller  crimes.  The  fines 
were  divided  between  the  state  (or  the  king,  if 
there  were  one)  and  the  injured  party  or  his 
family.  The  assembly  also  elected  the  chiefs, 
a  part  of  whose  duties  was  the  administration 
of  justice  in  the  subdivisions  of  the  pagus  and 
town.  As  a  support  to  his  authority  and  as 
advisers,  each  chief  was  assigned  one  hundred 
men  from  the  people,*  who  thus  had  a  direct 
hand  in  local  justice,  and  perhaps  also  in  local 
administration. 

The  expenses  of  government  must  have  been 
comparatively  light.  Royalty,  where  existent, 
had  not  attained  a  position  requiring  the  fiscal 
support  of  the  people.  The  so-called  king  had 
his  private  property  and  his  share  of  court  fines, 
which  probably  sufficed  for  him.*  The  chief 
had  the  larger  proportional  share  of  land  to 
which  his  rank  entitled  him,  and  any  lack  which 
this  left  unsatisfied  must  have  been  supplied 
*  Tacitus,  Germ.  c.  12. 


14  ANGLES  AND  SAXONS  ON  THE  CONTINENT 

by  the  voluntary  gifts  of  flocks  and  products 
of  the  field,  which  it  was  the  custom  of  the  peo- 
ple to  give  him/  The  judicial  department  was 
cared  for  by  the  fines,  and  the  expenses  of  the 
assembly  must  have  been  small  aside  from  the 
cost  of  attendance  borne  by  each  man.  There 
was  little  occasion  for  a  tax,  and  we  hear  of 
none. 

We  find  in  this  a  very  incomplete  picture, 
but  there  are  details  sufficient  to  show  us  a  col- 
lection of  tribes  united  by  blood  and  custom, 
though  not  by  a  common  government,  under 
a  system  whose  distinguishing  feature  was  that 
the  authority  rested  in  the  people,  or  at  least 
in  the  armed  men.  It  was  with  these  popular 
institutions  that  the  Anglo-Saxons  went  to 
England  in  the  fifth  century.  Let  us  see  what 
became  of  them  upon  British  soil. 

*  Tacitus,  Germ.  c.  15. 


II 

THE    ANGLO-SAXONS    IN    ENGLAND 

The  most  striking  change  wrought  by  the  mi- 
gration was  the  rising  of  kings  over  the  various 
states,  kings  in  fact  as  well  as  in  name.  Prob- 
ably this  was  not  an  instantaneous  process,  for 
while  a  nominal  king  might  be  set  up  in  a  day, 
the  centering  of  power  in  royalty  would,  among 
a  democratic  people,  be  of  slower  growth.  How- 
ever this  may  be,  it  is  certain  that  there  came  a 
new  tendency,  important  because  in  opposition 
to  the  popular  government  which  had  been  the 
real  essence  of  Teutonic  institutions.  Forecasts 
of  this  tendency  have  been  seen  before  the 
Anglo-Saxons  left  the  Continent,  but  we  now 
observe  it  clearly  defining  itself. 

Why  was  it  that  the  Germanic  tribes  crossed 
the  Channel  without  kings,  but  on  British  soil 
became  subject  to  them  earlier  than  did  the 
kindred  Saxons  and  Frisians  who  remained 
upon  the  Continent  ?  *    The  reasons  must  ap- 

*  2  Lappenberg,  375. 


16         THE  ANGLO-SAXONS  IN  ENGLAND 

parently  be  souglit  in  the  migration  and  in  the 
different  local  conditions.  The  invasion  en- 
tailed a  more  sustained  war  than  was  common 
at  home,  and  against  a  new  and  untried  foe. 
As  a  consequence  the  commanding  general 
must  have  had,  if  possible,  more  plenary  powers 
than  at  home.  On  account  of  the  length  of  the 
war,  these  powers  would  be  exercised  for  an 
unusual  term,  and  the  dux  or  heretoga  would 
become  somewhat  settled  as  the  head  of  the 
state,  perhaps  arrogating  to  himself  civil  au- 
thority as  well  as  military  during  the  time  of 
war,  and  retaining  it  when  hostilities  ceased. 
The  situation  in  which  the  Anglo-Saxons  found 
themselves,  constantly  in  danger  from  the  Scots 
and  Picts,  must  have  secured  the  people's  ac- 
quiescence in  a  change  which  made  for  their 
safety  in  unifying  the  tribes.  Probably  the  very 
migration  and  conquest  had  also  brought  about 
a  feeling  of  unity  among  the  people  of  each 
tribe  or  state  which  had  never  been  theirs  upon 
the  Continent,  and  which  found  in  royalty  a  wel- 
come expression.  And  they  were  nations  not 
merely  in  feeling,  but  also  in  fact,  and  as  such 
members  of  the  world's  family  of  nations,  with 
whose  kings  only  a  king  was  dignified  enough 
to  deal.^ 

*  Stubbs,  Const.  Hid.  §  32. 


THE  ANGLO-SAXONS  IN  ENGLAND  17 

The  national  feeling  spoken  of  does  not  mean 
that  the  Anglo-Saxons  at  once  became  a  single 
nation  extending  over  all  England.  Each  Ger- 
man state,  as  it  came  from  the  Continent,  re- 
tained its  identity,  but  the  tribes  of  which  it 
was  composed  each  caught  a  sentiment  which 
cemented  it  into  a  firmer  state  with  the  qualities 
of  a  nation.  Thus  there  were  in  England  a  num- 
ber of  kingdoms.  Some  of  them  were  of  no  wider 
extent  than  the  later  shire,  some  were  larger; 
but  the  more  powerful  absorbed  the  weaker  or 
forced  their  allegiance,  until  finally  the  seven 
or  eight  kingdoms  remaining  were  united  under 
one  preeminent  royal  house.  During  this  pro- 
cess of  aggregation,  as  Mr.  Taylor  terms  it,^ 
the  royal  power  steadily  gained  until  it  became 
the  expression  of  the  real  national  unity  of  all 
England. 

One  man  put  thus  in  a  place  of  power  over 
even  a  free  people  will  accumulate  authority. 
So  we  shall  not  be  surprised  to  see  the  people 
lose  much  of  the  political  rights  which  they 
had  exercised.  This  was  the  inevitable  result 
of  the  building  of  a  compact  nation  upon  a 
groundwork  of  conquest,  but  it  was  not  wholly 

*  1  Hannis  Taylor,  Origin  and  Orototh  of  the  English  Con- 
stitution, 176. 


18  THE  ANGLO-SAXONS  IN  ENGLAND 

deplorable.  Much  of  what  the  people  lost  in 
individual  rights  came  back  to  them  as  gain 
in  collective  solidarity,  and  this  solidarity  they 
firmly  kept  while  later  winning  back  their  pris- 
tine rights.  Nor  were  those  rights  ever  wholly 
lost,  especially  in  local  affairs.  There  were  checks 
to  the  king's  assumption  of  power.  The  share 
of  the  landed  man  in  the  checking  of  royal 
prerogative  is  the  subject  of  our  inquiry,  hence 
we  must  digress  from  our  main  story  long  enough 
to  look  at  the  system  of  landholding  in  Anglo- 
Saxon  England. 

Whatever  may  have  been  the  case  in  earlier 
times,  absolute  ownership  of  the  land  in  sev- 
eralty became  the  rule  in  England.*  Of  tenures 
there  were  two  main  kinds,  by  book-right  and 
by  folk-right.  Book-land  was  land  held  under 
charters  or  books  granted  by  the  king,  mostly 
to  bishoprics  and  religious  houses,  but  some- 
times to  lay  nobles.  The  grant  probably  made 
no  difference  in  the  occupation  of  the  land, 
but  simply  carried  lordship  and  revenues, 
profits  of  justice,  and  rights  of  jurisdiction. 
Land  held  by  book  was  alienable.  Folk-land 
has  been  thought  to  be  land  belonging  to  the 
people  at  large  and  granted  by  the  king  to  in- 

*  Stubbs,  Const.  Hist.  §  36. 


THE  ANGLO-SAXONS  IN  ENGLAND  19 

dividuals,  though  without  book  or  written 
record.  A  simpler  significance  of  the  term  is 
now  preferred  by  some  who  consider  that  it 
was  merely  land  held  by  folk-right  or  by  cus- 
tomary law.  It  was  perhaps  at  first  not  alien- 
able or  disposable  by  will.  The  holder  owed  to 
the  king  certain  services.  A  third  kind  of  land 
was  known  as  laen-land,  and  was  held  by  the 
tillers  of  lords  to  whom  rents  and  services  were 
paid.  Whether  or  not  this  tenure  resulted  from 
a  grant  of  book-land  from  the  king's  grantee 
to  the  occupier  is  not  known.* 

Of  more  interest  to  us  than  the  tenure  of 
land  is  its  allotment.  Unfortunately  we  have 
not  the  least  record  of  the  method  adopted 
in  dividing  the  land,  but  we  may  with  some 
degree  of  certainty  suppose  that  the  leader  of 
each  conquering  state  made  the  apportion- 
ment with  some  relation  to  the  divisions  of  the 
host  into  hundreds,  each  hundred  receiving  its 
own  share,  the  territory  of  the  hundred  being 
allotted  to  the  towns  and  the  sections  given  the 
towns  and  villages  parceled  out  to  the  house- 
holds or  individuals.  Some  such  process  would 
seem  to   be  necessary   in    order    to   make   a 

*  1  Pollock  &  Maitland,  History  of  English  Law  before  the 
Time  of  Edward  I  (2d  ed.)  60-62. 


90  THE  ANGLO-SAXONS  IN  ENGLAND 

peaceable  settlement.  While  some  sort  of  equal- 
ity may  have  been  observed  as  respected  the 
various  divisions  of  the  host,  it  is  scarcely  to  be 
doubted  that  individuals  would  receive  larger  or 
smaller  private  estates  according  to  their  rank, 
the  favor  in  which  they  stood  to  the  leader,  and 
their  services  in  the  conquest.  "  Nobles  or  other 
great  men  received  grants  of  estates,  or  perhaps 
attached  themselves  to  the  political  center  on  the 
condition  of  retaining  estates  which  they  had 
already  appropriated."  * 

"  The  primary  element  which  the  law  regards 
is  the  landowning  freeman."  ^  "  It  is  as  an  owner 
of  land,  or  as  a  fully  qualified  *  lawful  man,' 
.  .  .  that  the  freeman  has  rights  and  duties." ' 
This  landowning  freeman  was  the  descendant 
of  the  warrior  freeman  of  the  Germans ;  he  suc- 
ceeded to  his  standing  in  the  community,  with 
the  loss  of  such  rights  as  followed  the  intro- 
duction of  royalty.  The  invading  warrior,  with 
the  coming  of  peace,  settled  down  to  agricul- 
tural pursuits,  and  in  place  of  the  spear,  in 
the  time  of  Tacitus  borne  in  the  public  assem- 
bly, land  became  the  badge  of  his  rank. 

It  was  through  the  township  that  this  "law- 
ful man"  had  his  first  and  closest  touch  with 

»  Stubbs,  Const.  Hist.  §  35.     '  Ibid.  §  38.     »  Ibid.  §  39. 


THE  ANGLO-SAXONS  IN  ENGLAND  21 

political  affairs.  The  assembly  of  the  town  was  ^ 
composed  of  such  freemen.  In  it  were  per- 
haps made  the  by-laws  for  the  local  community. 
It  looked  after  certain  police  matters  like  the 
pursuit  of  criminals  and  the  search  for  stolen 
goods,  it  looked  to  the  collection  of  enactions 
laid  by  the  courts.  But  the  assembly  of  the  town 
was  not  a  court;  the  real  judicial  work  was  done 
in  the  hundred  and  shire  courts.  The  head 
man  was  the  town-reeve,  at  first  perhaps  elected 
by  the  freemen,  later  probably  appointed  by 
the  king  or  his  officer.  The  town  was  repre- 
sented in  the  courts  of  the  hundred  and  shire 
by  the  reeve  and  four  best  men,  who  may  have 
looked  to  the  town-meeting  for  instructions.^ 

The  division  next  larger  than  the  township 
was  the  hundred,  corresponding  judicially  to  *-^ 
the  German  fagus,  with  its  one  hundred  judges 
in  the  court  of  the  chief.  The  hundred  court 
was  held  monthly,  and  was  attended  by  the 
lords  of  lands  within  the  hundred  or  their  stew- 
ards, and  by  the  priest,  the  reeve,  and  the  four 
best  men  of  each  toT^nship.  It  had  a  general 
criminal  and  civil  jurisdiction.^ 

Superior  to  the  hundred  was  the  shire.    At    -^ 
its  head  stood  the  ealdorman,  who  was  the 

»  Stubbs,  Ccmsl.  Hist,  §§  3»-43.  ^  j^jj  §§  45^  ^g 


22  THE  ANGLO-SAXONS  IN  ENGLAND 

'princeps  or  chief  of  Tacitus  and  the  satrap 
of  Bede.  Elected  by  the  national  assembly  of 
the  Germans,  in  England  he  was  nominated 
by  the  king  and  confirmed  by  the  witan.  He 
held  oflSce  for  life,  unless  removed  by  the  power 
which  appointed  him.  Some  sort  of  hereditary 
principle  also  appeared,  at  least  to  the  extent 
of  limiting  the  office  to  the  old  regal  families 
which  had  been  mediatized  in  the  process  of 
aggregation.*  The  ealdorman  was  the  judicial 
head  of  the  shire,  and  had  full  power  to  hold 
pleas  and  proceed  to  execution  in  both  civil 
and  criminal  cases.  He  was  also  the  executive 
and  miUtary  head  of  the  shire.'^  As  one  of  the 
higher  nobles,  he  was  of  course  possessed  of 
large  landed  estates.  His  position  carried  with 
it  lands  in  the  shire  and  the  chance  to  receive 
gifts  for  favor  and  protection.'  He  had  a  seat 
in  the  witan  and  some  share  in  national  legis- 
lation and  judicature.* 

Alongside  the  ealdorman  was  the  sheriff. 
Originally  perhaps  elected  by  the  people  as 
the  judicial  president  of  the  shire,  he  became 

*  Stubbs,  Const.  Hist.  §  49;  2  Kemble,  Saxons  in  England, 
146-149. 

"  Stubbs,  Const.  Hist.  §  49;  2  Kemble,  Saxms,  136-138. 
'  2  Kemble,  Saxons,  140, 141. 

*  2  Kemble,  Saxons,  142, 143;  Stubbs,  Const.  Hist.  §  48. 


THE  ANGLO-SAXONS  IN  ENGLAND  23 

before  historical  times  the  peculiar  officer  of  the 
king,  appointed  by  the  crown  without  the  con- 
sent of  the  witan.  To  him  as  the  king's  stew- 
ard belonged  the  collection  of  the  fiscal  dues 
and  the  general  execution  of  the  law.  He  re- 
ceived, as  did  the  ealdorman,  a  share  of  the 
profits  of  jurisdiction,  and  sometimes  perhaps 
had  certain  land  attached  to  the  office.* 

In  the  court  of  the  shire,  presided  over  by 
the  sheriff,  sat  the  ealdorman  and  bishop  to  • 
declare  the  law  secular  and  spiritual.  The 
suitors  were  the  same  as  in  the  hundred  court, 
all  the  lords  of  lands,  all  pubUc  officers,  and 
the  priest,  reeve,  and  four  men  of  each  towiL, 
The  suitors  were  the  judges,  but  in  some  mat- 
ters (as  the  presentment  of  criminals)  the  twelve 
senior  thegns  came,  in  both  the  court  of  the  shire 
and  hundred,  to  act  alone.  The  shiremoot  had 
the  same  jurisdiction  as  the  hundredmoot,  the 
declaration  of  folk-right  in  every  suit;  but  it 
was  not  strictly  an  appellate  court.  Indeed 
the  English  at  this  time  had  no  real  system  of 
appeal.  One  could  remove  his  case  from  the 
lower  to  the  higher  court  only  when  no  deci- 
sion was  made;  a  judgment  once  given  was 
final.    But  if  a  litigant  thrice  demanded  right 

*  Stubbs,  Ccmd.  Hid.  §  49;  2  Kemble,  Saxms,  158-165. 


24  THE  ANGLO-SAXONS  IN  ENGLAND 

in  the  hundred  court  and  could  get  no  deci- 
sion, he  could  press  his  suit  in  the  shire  court. 
Similarly,  he  could  resort  from  the  latter  court 
to  the  king.* 

After  this  brief  view  of  the  local  and  more 
popular  branches  of  the  Anglo-Saxon  consti- 
tution, we  may  return  to  the  national  government 
and  the  king.  It  is  probable  that,  next  after 
the  military  commandership,  it  was  in  what  we 
now  call  the  executive  department  that  the  king 
first  gained  predominance,  for  it  is  the  every- 
day round  of  official  business,  the  collection 
of  revenue,  the  control  of  diplomacy,  which 
most  naturally  would  fall  into  the  hands  of  the 
man  who  embodied  the  national  unity.  In 
the  process  of  aggregation,  even  if  not  in  the 
earliest  and  smallest  kingdom,  the  burden  of 
such  duties  must  soon  have  become  so  great 
as  to  demand  the  aid  of  ministers.  These  would 
of  course  be  appointed  by  the  king,  and  thus 
arose  a  body  of  administrators  answerable  to 
the  king  alone.  We  shall  later  meet  the  system 
as  a  serious  barrier  to  the  winning  of  civil  liberty 
by  the  people. 

The  king  inevitably  tended,  not  merely  to 
express  the  national  unity,  but  also  to  attract 
*  Stubbs,  Const.  Hist.  §  50. 


THE  ANGLO-SAXONS  IN  ENGLAND  25 

to  himself  the  functions  of  government,  until 
he  became,  at  least  so  far  as  political  activity 
and  power  were  concerned,  almost  the  nation 
itself.  Thus,  as  the  process  of  aggregation  went 
on,  the  popular  elements  of  the  government 
were  left  largely  in  the  local  aggregated  parts 
and  did  not  persist  above  the  shire.  As  the 
kingdom  could  be  a  nation  only  if  under  one 
law,  we  find  legislation  becoming  national  and 
passing  from  the  hands  of  the  people.  The 
king  claimed  to  be  in  some  sort  the  paramount 
legislator.^  But  the  theory  of  a  legislative  body 
was  without  doubt  too  strongly  impressed  upon 
the  race  to  be  entirely  lost,  and  the  king,  so 
far  as  we  know,  always  had  his  witan,  or  as- 
sembly of  wise  men.  As  for  the  power  of  that 
body,  something  of  a  problem  is  presented.  No 
contemporary  accounts  enlighten  us  fully  as 
to  the  practical  workings  of  the  king  and  witan, 
so  we  may  not  know  whether  in  the  session 
the  king  or  his  advisory  board  was  the  superior 
power.  It  is  very  Ukely  that  a  strong  king  could 
get  along  with  the  form  of  the  witan,  that  he 
would  convene  it  and  declare  his  will,  giving 
to  it  the  right  of  a  rather  hollow  assent.  A  weak 

*  1  Palgrave,  History  of  the  Rise  and  Progress  of  the  English 
Commonwealth,  648. 


26  THE  ANGLO-SAXONS  IN  ENGLAND 

king,  however,  might  require  something  more 
substantial  than  formal  consent,  and  seek  coun- 
sel; it  is  possible  that  the  witan  might  at  times 
even  make  some  demands.  The  initiative, 
however,  must  in  general  have  lain  with  the 
king. 

The  earliest  specimen  of  Anglo-Saxon  legis- 
lation is  said  to  be  the  collection  of  dooms 
which  iEthelbert,  king  of  Kent,  "estabUshed 
with  the  consent  of  his  Witan"  about  the  year 
600.*  Nearly  a  century  later  Ini  promulgated 
the  laws  of  Wessex,  prefaced  by  the  words:  "I, 
Ini  .  .  .  with  the  counsel  and  with  the  teach- 
ing of  Cenred  my  father,  and  of  Hedde  my 
bishop,  and  of  Eorcenwold  my  bishop,  with 
all  my  ealdormen  and  the  most  distinguished 
witan  of  my  people,  and  also  with  a  large  assem- 
bly of  God's  servants,  have  been  considering 
of  the  health  of  our  souls  and  of  the  stability 
of  our  realm;  so  that  just  law  and  just  kingly 
dooms  might  be  settled  and  established  through- 
out our  folk,  so  that  none  of  the  ealdormen 
nor  of  our  subjects  should  hereafter  pervert 
these  our  dooms."  ^  In  the  earlier  case  the  witan 
gave  consent.   Did  they  do  more  in  the  later? 

*  1  Palgrave,  Eng.  Com.  43. 

'  Ini,  Preamble  to  Laws,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  61. 


THE  ANGLO-SAXONS  IN  ENGLAND  27 

Cenred  and  the  bishops  appear  to  have  first 
advised  Ini.  Next  the  king  called  together  his 
witan  and  "considered"  with  them,  which 
suggests  either  that  Ini  listened  to  their  advice 
or  at  least  questioned  them  as  to  various  local 
customs  which  should  be  of  value  in  making 
a  code.  Apparently  there  had  been  a  variety 
of  law  administered  by  the  various  ealdormen, 
for  a  settled  law  throughout  the  folk  seems  the 
object  of  the  dooms.  Perhaps,  therefore,  Ini 
used  the  witan  only  as  informants,  but  prob- 
ably some  sort  of  consent  was  also  sought  in 
order  that  the  various  ealdormen  might  the 
more  harmoniously  support  the  codified  law 
in  cases  where  it  differed  from  local  custom. 
Even  so,  the  conclusion  remains  to  be  drawn 
from  "m?/  ealdormen"  and  the  "witan  of  my 
people,"  as  well  as  from  the  promulgation  in 
the  king's  name,  that  it  was  Ini  who  had  the 
real  authority  of  this  legislative  body. 

Another  king  of  Wessex,  two  hundred  years 
later  than  Ini,  gives  us  a  somewhat  clearer 
idea  of  the  procedure  in  the  witenagemot.  "  I, 
then,  Alfred,  king,  gathered  these  [laws]  together, 
and  commanded  many  of  those  to  be  written 
which  our  forefathers  held,  those  which  to  me 
seemed  good;  and  many  of  those  which  seemed 


28  THE  ANGLO-SAXONS  IN  ENGLAND 

to  me  not  good  I  rejected  them,  by  the  counsel 
of  my  witan.  ...  I,  then,  Alfred,  king  of  the 
West  Saxons,  shewed  these  to  all  my  witan, 
and  they  then  said  that  it  seemed  good  to  them 
all  to  be  holden."*  We  have  "counsel"  spoken 
of,  but  the  obvious  picture  is  that  of  the  king 
making  the  codification  as  seemed  best  to 
him,  and  then  getting  the  consent  of  his  witan. 
Of  counsel  in  the  sense  of  advice  nothing 
appears. 

We  find  an  institute  "  which  King  Eadmund 
and  his  bishops,  with  his  witan,  made"  about 
943.2  Eadgar  a  few  years  later  ordained  "with 
the  counsel  of  his  witan." '  There  exists  also 
an  "ordinance  which  King  ^Ethelred  and  his 
witan  ordained"  somewhere  in  the  vicinity  of 
1000.*  We  may  safely  say,  therefore,  that  at 
times  the  witan  wielded  an  effective  part  of 
the  legislative  authority.  Just  what  part  this 
was  very  likely  depended,  as  already  suggested, 
somewhat  upon  the  character  of  the  king.  It 
is  also  probable  that,  while  there  was  a  see-saw 
as  to  the  relative  power  of  the  king  and  his 

^  Laws  of  Alfred,  Preamble,  in  Stubbs,  Sel.  Chart.  (8th  ed.) 

»  Stubbs,  Sel.  Chart.  (8th  ed.)  67. 

'  Preamble  to  Ordinance,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  71. 
Mhdred  I,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  72. 


THE  ANGLO-SAXONS  IN  ENGLAND  29 

advisers,  there  was  on  the  whole  a  consider- 
able tendency  in  Anglo-Saxon  times  toward 
the  strengthening  of  that  of  the  witan.  The 
charters  of  the  tenth  century  point  that  way. 
Should  it  be  true  that  the  witan  at  some  time 
was  not  strictly  a  legislature,  and  that  the  king 
merely  promulgated  his  edicts  amidst  his  peers 
and  prelates,  using  the  language  of  command,* 
to  which  the  witan  assented  as  a  matter  of 
course,  the  usage  of  assent  must  surely  in  the 
long  run  have  ceased  to  be  formal  and  have 
become  gradually  essential.  From  such  a  state 
of  affairs  it  is  but  a  step  to  the  claiming  of  an 
equal  share  in  legislation,  and  when  the  king 
retains  but  a  moiety,  his  prerogative  is  bound 
even  further  to  decline.  Once  the  counselors* 
voices  are  heard  in  advice,  they  will  learn  to 
speak  with  authority.  Once  authority  comes 
in  one  measure,  it  follows  in  another.  Yet  the 
process  is  the  slow  one  of  the  centuries. 

Who  composed  this  witan  in  which  such 
potentiality  was  gathering?  To  begin  with  a 
negative,  it  was  not  a  folkmoot.  As  long  as 
the  kingdom  remained  coextensive  with  the 
shire,  there  existed  perhaps  a  national  folk- 
moot  side  by  side  with  the  newer  witenagemot, 
*  1  Palgrave,  Eng.  Com.  638. 


30  THE  ANGLO-SAXONS  IN  ENGLAND 

but  in  a  kingdom  of  aggregated  shires  no  folk- 
moot  other  than  those  of  the  shires  was  known. 
In  the  consoHdated  kingdom  the  principle  of 
popular  representation  in  its  purity  was  lost 
sight  of ;  although  constructively  the  witan  re- 
presented the  rights  of  the  people,  its  members 
were  not  formally  there  in  behalf  of  the  freemen. 
Now  and  then,  on  unusual  occasions,  —  when 
a  king  was  to  be  crowned  or  invasion  repelled, 
—  the  people  assembled  at  the  place  where  the 
witan  sat,  but  they  were  not  a  part  of  the  legis- 
lative body  and  had  no  voice  other  than  such 
as  comes  from  the  acclamation  of  the  crowd.* 
Possibly  the  people  acquiesced  the  more  readily 
in  such  a  loss  of  power  because,  when  the  units 
of  the  kingdom  were  consoUdated,  it  became 
impossible  for  all  the  freemen  to  attend.  Be- 
sides the  inconvenience  and  expense  of  travel, 
the  interest  of  each  man,  as  the  kingdom  en- 
larged, would  become  more  local  and  provin- 
cial, and  less  national.^ 

As  the  king  could  get  along  with  hardly  more 
than  the  assent  or  counsel  of  subjects,  he  would 
give  place  only  to  such  of  them  as  pleased  him 
most  or  as,  because  of  their  power  and  influence, 

*  Stubbs,  Const.  Hist.  §  51. 
"  2  Kemble,  Saxons,  191-193. 


THE  ANGLO-SAXONS  IN  ENGLAND  31 

he  found  it  wise  to  keep  attached  to  his  cause. ^ 
He  had  a  body  ready-made  from  which  to  draw 
such  men.  Every  German  princeps  had  his  comi- 
tatus  or  following  of  men  attached  to  his  cause. 
They  were  his  distinction  in  time  of  peace  and 
his  support  in  time  of  war  ;  constantly  with 
him,  they  even  sat  at  his  table.'  To  such  a  body 
of  tried  friends  the  king  might  well  first  turn  for 
his  administrative  officers  and  for  his  counselors. 
These  comites  or  gesiths  were  originally  un- 
free  and  members  of  the  royal  household,  but, 
because  of  their  nearness  and  services  to  the 
king,  they  were  liberally  rewarded  with  grants 
of  land,  so  hberally  indeed  that  they  came  to 
have  a  better  lot  than  did  the  landed  freemen 
or  even  the  noble  by  birth.  So  well  did  they 
thrive  that  the  old  nobility  were  absorbed  by 
the  new.'  The  more  important  gesiths  became 
thegnSy  that  is,  warrior  gesiths  owing  mihtary 
duty.  A  freeman  who  acquired  five  hides  of  land 
and  entered  the  service  of  the  king  became  like- 
wise a  thegn.  On  the  other  hand,  the  noble 
by  birth,  recognizing  the  superior  opportunities 
which  the  thegnhood  offered,  was  fain  himself 

*  The  members  of  the  witan  were  not  elected,  but  simmioned 
by  writ  of  the  king.   2  Kemble,  Saxons,  201. 

^  Tacitus,  Gerwi.  cc.  13,14.        '  Kemble,  jSoaron«,bk.i,ch.vii. 


32  THE  ANGLO-SAXONS  IN  ENGLAND 

to  become  a  thegn,  and  placed  himself  in  the 
king's  service.  The  gesiths  likewise  disap- 
peared, those  who  did  not  attain  thegnhood  be- 
coming mere  servants  of  the  king.  Thegn  came 
to  be  the  name  of  the  large  class  of  nobility, 
high  and  low,  who  held  a  certain  amount  of 
land  and  were  bound  personally  to  the  king  by 
obligation  to  do  military  service.* 

*  Stubbs,  Const.  Hist.  §  65.  Whether  the  possession  of  five 
hides  of  land  alone  was  suJEBcient  to  confer  thegnhood,  is  dis- 
puted. See  Ibid.  Lappenberg  thought  that  the  origin  of  thegn- 
ship  was  lost  sight  of,  and  that  "not  alone  martial  honour,  but 
its  external  reward  pand],  was  regarded  as  a  foundation  of 
nobility."  The  same  writer  gave  the  rank  to  the  freemen  who 
had  certain  armor  and  to  the  merchant  who  three  times  crossed 
the  ocean  at  his  own  expense.  2  Lappenberg,  386.  Cf .  Of  Peo- 
ple's Ranks  and  Laws,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  65.  Doubt 
has  been  expressed  as  to  the  latter  being  a  basis  for  thegnship. 
1  Pollock  &  Maitland  (2d  ed.)  34.  A  man  wealthy  enough  to 
do  so  much  traveUng  must,  however,  have  had  five  hides  of 
land,  for  land  was  almost  the  sole  wealth  of  the  day.  "It  no- 
where appears  that  the  mere  possession  of  a  fixed  quantity  of 
land  entitled  the  owner  to  the  rank  of  a  thegn,  but  the  frequent 
mention  of  five  hides  in  connexion  with  the  thegnhood  would 
seem  to  show  that,  in  addition  to  other  qualifications,  a  thegn 
would  ordinarily  need  and  obtain  from  a  royal  grant  an  endow- 
ment of  that  extent."  Medley,  Student's  Maniud  of  English 
Constitutional  History,  18, 19.  It  is  safe  to  say  that  the  holding 
of  land,  even  if  not  essential,  became  the  rule,  and  rather  ob- 
scured the  original  badge  of  thegnhood,  which  was  the  personal 
tie  of  service.   The  thegns  became  as  a  whole  a  class  of  larger 


THE  ANGLO-SAXONS  IN  ENGLAND  S3 

When  the  thegns  thus  came  to  be  distin- 
guished for  landed  property  as  well  as  for  per- 
sonal relationship  to  the  king,  they  had  added 
recommendations  as  candidates  for  the  witan. 
Among  them  were  found  the  men  of  the  great- 
est wealth  in  the  nation,  for  personal  property 
in  Anglo-Saxon  times  was  comparatively  very 
small.  Now  the  wealthy  man,  who  was  the 
landed  man,  could  not  well  be  neglected  by  the 
king  when  he  sought  support.  We  are  not  to 
think,  however,  that  every  landowner  was  con- 
sulted. There  were  two  classes  of  thegns,  the 
richer  and  the  poorer.  The  former  paid  fiscal 
charges  directly  to  the  king  ;  the  latter  dealt 
with  the  sheriff.  The  distinction  was  much  the 
same  as  that  between  the  later  harones  majores 
and  harones  minores}  The  richer  thegns  bore 
the  bulk  of  the  fiscal  burdens;  they  and  their 

landowners.  "The  development  of  the  comitatus  into  a  terri- 
torial nobility  seems  to  be  a  feature  pecuUar  to  Englith  history." 
Stubbs,  Const.  Hist.  §  65.  "The  possession  of  land  was,  even 
whilst  the  idea  of  nationality  was  mainly  a  personal  one,  the 
badge,  if  not  the  basis,  of  all  political  and  constitutional  right. 
On  it  depended,  when  the  personal  idea  yielded  to  the  territorial, 
the  rights  and  obligations,  the  rank,  value,  and  credibihty  of  the 
member  of  the  body  politic;  it  became  the  basis  as  well  as  the 
tangible  expression  of  his  status."  Ibid.  §  36. 
*  Maitland,  D.  B.  and  Beymd,  165,  166. 


84  THE  ANGLO-SAXONS  IN  ENGLAND 

dependants  and  military  followers  were  a  con- 
siderable portion  of  the  king's  fighting  force. 
If  ever  policy  led  the  king  to  seek  counselors, 
surely  he  would  look  for  them  here.  On  the 
other  hand,  if  any  man  were  to  demand  a  share 
in  public  council,  who  was  more  likely  to  do  so 
than  this  very  thegn  to  whom  the  burdens  of 
taxation  and  military  service  gave  the  greatest 
interest  in  public  business  ?  *  And  where  could 

*  Taxation,  in  the  modem  sense  of  the  term,  did  not  exist 
until  a  very  late  period  in  Anglo-Saxon  history.  Revenue  ample 
for  the  king  and  government  was  furnished  by  the  income  from 
lands  owned  by  the  crown,  the  profits  of  justice,  fines  for  non- 
attendance  upon  military  duty,  purveyance  for  the  king  and 
his  retinue  in  royal  progresses  through  the  realm,  wreck,  trea- 
sure-trove, the  produce.of  mines,  and  in  later  times  the  semi- 
feudal  charges.  Stubbs,  Const.  Hist.  §  59.  All  land  was  subject 
to  the  trinoda  necessitas  —  military  service,  the  repair  of  bridges, 
and  the  maintenance  of  fortifications — all  personally  performed. 
Stubbs,  Const.  Hist.  §§  36, 46.  The  modest  needs  of  the  young 
nation  required  no  real  tax  imtil  the  Danish  invasions  when,  to 
buy  off  the  foe,  large  siuns  were  raised  by  a  charge  called  Dane- 
geld,  levied  on  the  land  at  so  much  a  hide.  Upon  the  same  basis 
shipgeld  was  assessed  to  provide  fleets.  To  this  extraordinary 
taxation  the  consent  of  the  witan  was  necessary.  Stubbs,  Const. 
Hist.i  56;  1  Taylor,  Eng.  Const.  186, 187;  2  Lappenberg, 210- 
212.  The  witan  also  participated  in  the  determination  of  war 
and  peace,  and  in  the  direction  of  the  fleet  and  army.  Stubbs, 
Const.  Hist.  §  56.  The  importance  of  the  landed  man  getting 
a  hearing  in  the  witan  consisted  in  the  fact  that  there  it  was  that 
questions  so  nearly  affecting  his  welfare  were  decided. 


THE  ANGLO-SAXONS  IN  ENGLAND  35 

the  king  look  more  wisely  for  advice  than  to 
the  lords  of  land  who  had  gained  the  sharp  wits 
and  executive  experience  of  men  of  affairs  in 
the  handling  of  their  property?  Even  if  the 
king  summoned  the  poorer  men,  those  of  the 
remote  districts  would  not  be  able  to  bear  the 
expense  of  attendance,  and  their  larger  landed 
neighbors  would  be  the  only  men  of  the  locality 
actually  finding  seats  in  the  witan. 

While  the  predecessor  of  the  thegnhood,  the 
comitatus,  was  the  class  from  which  the  king 
at  first  largely  drew  his  witan,  the  thegns  did 
not  constitute  the  whole  body  or  even  the  most 
influential  portion  of  it.^  They  probably  had 
less  prestige  than  the  ealdormen  and  bishops. 
This  may  be  taken  to  indicate  that  all  which 
has  been  said  of  them  is  of  small  import,  but 

*  Besides  the  thegns,  the  witan  contained  princes  of  the 
blood  and  ealdormen.  After  the  introduction  of  Christianity, 
archbishops,  bishops,  abbots,  priests,  and  deacons  found  seats. 
2  Kemble,  Saxons,  195, 196.  It  is  interesting  to  note  in  passing 
that  all  of  them  had  large  landed  interests,  although  that  fact 
had  no  influence  in  placing  them  in  the  witan.  Princes  of  the 
blood  were  representatives  of  royalty.  Ealdormen  were  there 
as  members  of  the  old  royal  families  and  important  public 
officers.  The  clergy  represented  the  holy  counsel  of  the  church. 
But  though  they  were  not  members  in  any  degree  because  of 
their  land,  the  fact  that  they  did  have  land  very  likely  some- 
times colored  their  action  in  the  witenagemot. 


86  THE  ANGLO-SAXONS  IN  ENGLAND 

SO  to  take  it  would  be  erroneous.  What  we  are 
to  fasten  to  is  this:  in  the  witan  the  only  mem- 
bers who  in  any  wise  were  drawn  from  the 
people  (as  distinguished  from  the  royal  or  sub- 
royal  families  and  the  church)  were  the  thegns, 
and  these  thegns  were  for  the  most  part  men 
of  landed  possessions;  in  later  times,  perhaps, 
they  owed  their  presence  in  the  witan  partly 
to  the  very  fact  that  they  had  large  estates. 
Though  overshadowed  by  the  king  and  even 
by  other  members  of  the  witan,  they  had  pre- 
sent power  and  the  promise  of  authority  in  the 
future;  they  were  the  entering  wedge  of  popu- 
lar legislation. 

We  have  yet  to  consider  the  king's  part  in  the 
jurisprudence  of  the  Anglo-Saxon  period.  No 
portion  of  the  popular  institutions  of  the  Ger- 
mans survived  the  transplanting  to  English  soil 
so  hardily  as  did  the  judicial.  In  the  local  courts 
of  the  shire  and  hundred,  as  we  have  already 
seen,  justice  remained  at  bottom  popular,  but 
the  new  kingship  was  of  too  all-absorbing  a  char- 
acter not  in  a  large  and  increasing  degree  to 
affect  jurisprudence.  At  first,  however,  the  royal 
influence  would  confine  itself  chiefly  to  national 
judicature,  leaving  the  local  to  retain  much  of 
its  Germanic  purity;  but  after  a  time  the  im- 


THE  ANGLO-SAXONS  IN  ENGLAND  37 

press  of  the  king  would  be  felt  from  above  and 
justice  would  become  royal. 

Over  his  comitatus  the  king  would  very 
shortly  acquire  a  jurisdiction;  they  would  be 
under  his  protection.  If  the  king  called  his 
people  to  him,  they  came  under  the  same  pro- 
tection, and  "  if  any  one  there  do  them  evil,  let 
him  compensate  with  a  twofold  hot  [the  fine 
paid  to  the  injured  man  or  his  family]  and  fifty 
shillings  to  the  king."  ^  Under  Ini,  if  a  man 
fought  in  the  king's  house  both  life  and  pro- 
perty were  at  the  king's  mercy,  and  bot  was  to 
be  made  for  violation  of  his  castle  at  one  hun- 
dred and  twenty  shillings.^  By  Alfred's  time, 
treason  was  6oMess;  plotting  against  the  king's 
life  or  harboring  exiles  was  a  capital  offense.' 
If  a  man  fought  before  a  king's  ealdorman  in 
the  gemot  or  drew  his  weapon  in  folkmoot, 
special  penalties  were  fixed.*  Contempt  in  the 
popular  court  was  becoming  contempt  of  the 
king's  oflBcer  or  of  the  king.  This  points  to 
the  court  itself  becoming  the  king's.  The  king 
thus  gradually  extended  his  peace  from  per- 

^  ^thelbert,  c.  2,  in  Stubbs,  Sd.  Chart.    (8th  ed.)  61. 
2  Stubbs,  Canst.  Hist.  §  71;  Sel.  Chart.  (8\h.  ed.)  62. 
5  Alfred,  c.  4,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  62. 
*  Ibid.  c.  38. 


88  THE  ANGLO-SAXONS  IN  ENGLAND 

sons  actually  in  his  presence  to  those  con- 
structively so  situated.  This  peace  differed 
from  the  old  national  peace,  for  the  breach  of 
which  one  half  of  the  fine  went  to  the  German 
state  and  one  half  to  the  injured  party  or  his 
family.*  So  it  differed  from  the  early  EngHsh 
national  peace,  the  fine  of  which  was  similarly 
divided  between  the  king  and  the  injured  party. 
Of  this  national  peace  the  king  was  indeed 
guardian,  but  it  was  distinct  from  that  private 
peace  which  was  a  protection  of  those  who 
were  under  his  eye.  Imperceptibly  this  latter 
peace  was  extended  from  the  king's  household 
to  his  highways,  from  person  to  person  and  place 
to  place,  until  all  England  was  within  it.  Then 
the  enforcement  of  law  lived  and  died  with 
the  king  and  was  suspended  during  an  inter- 
regnum. Inseparable  from  the  enforcement 
of  the  king's  peace  was  the  exercise  of  juris- 
diction, so  that  its  final  prevalence  made  the 
king  "the  supreme  judge  of  all  persons  and 
over  all  causes,  Hmited  however  by  the  counsel 
and  consent  of  his  witan."  "^ 

With  the  sovereign  as  the  fountain  of  jus- 
tice, the  old  hundred  and  shire  courts  became 
quasi-royal  courts,  in  which  the  sheriff  and 
*  Tacitus,  Germ.  c.  12.  ^  Stubbs,  Ccmst.  Hist.  §  §  71 ,  72, 73. 


THE  ANGLO-SAXONS  IN  ENGLAND  39 

the  ealdorman  represented  the  authority  of  the 
king.  By  him  they  were  supported  and  upheld, 
and  by  them  he  was  bound  theoretically  to  see 
justice  done.  K  a  litigant  could  not  there  find 
justice,  he  applied  to  the  king  for  judgment.^ 
If  judicial  officers  were  guilty  of  maladmin- 
istration, it  was  the  king  only  who  could  right 
the  wrong.2  While  the  king  had  not  therefore 
immediate  jurisdiction  in  common  justice,  in 
some  special  cases  he  was  a  judge  of  the  first 
instance.  This  was  so  where  both  parties  were 
of  the  highest  rank.' 

Over  book-land  the  king  and  witan  had  a 
special  jurisdiction  which  was  of  the  highest 
importance.  Book-land,  it  will  be  remembered, 
was  land  granted  to  a  bishopric  or  abbey  or 
to  a  lay  lord  by  the  king  and  witan.  In  many 
cases  probably  the  land  was  already  the  pro- 
perty of  the  grantee,  and  the  only  result  of  the 
booking  was  the  freeing  of  the  land  from  all 
charges  except  the  trinoda  necessitas.  This 
would  mean  that  included  in  the  exemptions 
were  the  profits  of  justice  which  had  belonged 

*  Eadgar,  Secular  Ordinance,  c.  2;  Cnut,  Secular  Dooms, 
c.  17;  in  Stubbs,  Sel  ChaH.  (8th  ed.)  71,  73. 

^  2  Kemble,  Saxons,  41. 

'  Ibid.  45;  ^thelred  HI,  c.  11,  in  Stubbs,  Sd.  ChaH.  (8th 
ed.)  73. 


40  THE  ANGLO-SAXONS  IN  ENGLAND 

to  the  king.  Even  when  the  title  to  the  land 
itself  passed  by  the  booking,  it  passed  with  this 
exemption.  With  the  profits  of  jurisdiction  went 
almost  inseparably  the  jurisdiction  itself,  the 
sake  and  soke.  The  grant,  to  be  sure,  gave  only 
the  right  to  receive  a  portion  or  the  whole  of 
the  court  fines,  and  made  no  mention  of  the 
right  to  hold  the  court,  but  the  lord  would  find 
it  convenient  in  many,  if  not  most,  cases  to  set 
up  a  court  of  his  own.  To  this  no  objection 
would  be  made,  as  the  question  was  who  had 
a  right  to  the  fines,  not  who  had  the  court.  So 
seigniorial  courts  cut  into  or  destroyed  many 
a  hundred  court.  But  whether  a  cause  were 
decided  in  one  court  or  the  other,  the  procedure 
was  the  same,  and  justice  was  done  by  dooms- 
men  who  were  "lawful  men"  and  peers  of  the 
accused.  With  the  exception  of  criminal  cases, 
which  the  crown  often  reserved,  some  later  Anglo- 
Saxon  communities  saw  a  good  part  of  the 
administration  of  justice  done,  not  in  the  folk- 
moots  nor  in  the  king's  own  courts,  but  in  the 
courts  of  landed  lords,  done,  however,  by  dooms- 
men  who  in  a  manner  represented  the  landed 
freemen  who  were  the  sinew  of  the  people.* 

*  Stubbs,  Const.  Hist.  §  73;  Maitland,  D.  B.  and  Beyond, 
80-107,  283-290. 


THE  ANGLO-SAXONS  IN  ENGLAND  41 

Let  US  try  to  sum  up  the  tendencies  of  the 
Anglo-Saxon  period.  We  see  kings  rising  over 
the  German  tribes  and  taking  to  themselves 
the  usual  powers  of  kings.  In  the  course  of  time 
a  stronger  king  rises  over  the  weaker,  and  we 
have  a  united  England.  This  king  assumes 
more  and  more  of  the  authority  which  for- 
merly lay  in  the  people.  He  becomes  paramount 
administrator,  legislator,  and  judge.  The  min- 
isters of  state  are  his  appointees  and  subject 
to  him  alone.  The  king  is  not,  however,  the  sole 
lawmaker;  he  is  subject  here  to  the  more  or 
less  uncertain  check  of  the  witan,  which  may 
range  from  formal  assent  to  occasional  demand. 
But  this  witan  has  always  real  potentiality,  even 
when  it  is  not  expressed  by  present  power.  The 
nearest  approach  to  the  common  people  among 
its  members  are  the  thegns,  who  are  for  the  most 
part  large  landowners.  These  being  among  the 
men  upon  whom  taxation  and  military  service 
most  severely  fall,  we  look  to  them  for  some 
influence  when  the  king  urges  upon  the  witan 
an  unusual  tax  or  the  undertaking  of  war.  In 
the  administration  of  justice  the  king,  though 
at  first  supreme  judge  of  the  nation,  does  not 
immediately  absorb  the  old  popular  jurisdiction 
of  the  folkmoot,  but  his  oflficers  early  become 


42  THE  ANGLO-SAXONS  IN  ENGLAND 

the  president  and  chief  declarant  of  law,  hable 
only  to  him;  and  in  time,  as  the  king's  peace 
extends  over  the  whole  land,  jurisdiction  be- 
comes royal.  But  we  observe  another  tendency. 
The  king  grants  the  fruits  of  local  justice  in 
many  places  to  lords  of  land,  reserving  to  him- 
self criminal  jurisdiction.  This  tends  to  make 
local  civil  justice  seigniorial  and  to  wipe  out 
the  old  hundred  courts.  We  approach  a  sys- 
tem in  which  jurisdiction  is  divided  between 
the  king  and  the  territorial  nobihty.  But  through 
it  all,  in  the  local  courts  there  persists  the  prin- 
ciple of  the\folkmoot:  the  doomsmen  are  landed 
freemen,  probably  elected  by  landed  freemen  in 
town-meeting.  Thus  in  witan  and  local  court 
the  only  popular  influences  actual  or  potential 
are  those  which  lie  with  landed  men. 


Ill 

THE    NOEMAN    CONQUEST    AND    FEUDAL- 
IZATION 

Little  as  there  was  of  popular  influence  in 
Anglo-Saxon  times,  there  was  to  be  even  greater 
concentration  of  power  in  the  king  before  the 
processes  of  liberty  could  gain  momentum. 
What  contributed  more  than  anything  else  to 
this  further  centralization  was  the  introduction 
of  the  feudal  system  and  its  adaptation  to  Eng- 
lish conditions.  Feudalization  was  the  most 
important  and  far-reaching  effect  of  the  Nor- 
man Conquest.  Tendencies  toward  it  had  been 
at  work  even  during  Anglo-Saxon  times,  but  they 
were  entirely  unorganized.  Only  when  WilUam 
the  Conqueror  brought  over  the  perfected 
machinery  of  continental  tenure  was  the  feudal 
system  impressed  upon  England. 

The  continental  feudalism  was  a  compound 
of  land  tenure  and  administration.  The  king 
was  the  lord  of  all  the  land,  which  he  had  either 
given  from  his  own  estates  to  his  vassals  upon 
certain   conditions   or  had   received  from  the 


44    NORMAN  CONQUEST  AND  FEUDALIZATION 

weaker  of  them  and  regranted  upon  similar 
conditions.  These  conditions  were  that  the 
king  should  protect  and  defend  the  vassal  and 
that  the  vassal  should  be  ever  faithful  and  ready 
to  fight  for  the  king.  Primarily  the  tenure  was 
military.  Secondarily  it  was  administrative, 
since  the  lord  had  jurisdiction  over  his  fief. 
Now  the  lord  had  his  own  dependent  tenants, 
holding  from  him  as  he  held  from  the  king, 
and  in  like  manner  the  system  might  extend 
for  several  degrees.  Thus  the  circle  about  the 
king  was  broken  into  smaller  circles  bound 
to  the  head  of  the  nation  by  the  homage  and 
fealty  of  the  lords  who  were  their  centers,  by 
the  strength  of  the  king,  and  by  the  need  of  the 
lords.  Let  the  lords  thrive  and  the  king  become 
weak,  and  the  ties  became  the  mere  threads 
of  conscience  represented  by  the  vassals'  oaths, 
which  might  easily  snap  and  let  the  smaller 
circles  fly  upon  tangents.  Add  to  this  the  simi- 
lar disruptive  tendency  of  the  smaller  circle 
with  its  own  sub-circles,  and  the  possibiUties 
of  anarchy  became  serious.* 

This  system,  so  far  as  the  tenure  of  land  was 
concerned,  was  transplanted  to  England.  Such 
Anglo-Saxon  landowners  as  did  homage  to  the 

*  Stubbs,  Const.  Hid.  §§  92-94. 


^ 


NORMAN  CONQUEST  AND  FEUDALIZATION    45 

Conqueror  redeemed  their  estates  and  perhaps 
insensibly  found  themselves  feudal  vassals. 
Those  who  held  out  lost  their  lands  entirely 
and  saw  them  pass  into  the  hands  of  Norman 
feudatories.  Thus  gradually  tenure  in  England 
became  feudal,  and  for  the  first  time  the  per- 
sonal relation  between  king  and  subject  was 
overshadowed  by  the  territorial.  The  king  was 
the  paramount  landlord  of  whom  every  land- 
owner held  mediately  or  immediately.* 

The  tendencies  of  feudalism  in  government, 
being  centrifugal,  could  hardly  meet  the  ap- 
proval of  a  conqueror  who  wished  to  enjoy  the 
fruits  of  his  conquest.  The  system  of  feudal 
land  tenure  was  the  only  one  familiar  to  the 
Norman  mind ;  hence  it  was  retained,  but  re- 
straints were  sought  and  found  which  made 
English  administration  centripetal  and  fairly 
avoided  anarchy  except  when  the  weakness  of 
Stephen  allowed  the  reins  of  government  to 
fall  loose. 

In  1086  William  the  Conqueror  held  a  great 
gemot  at  Salisbury.  "And  there  came  to  him 
his  witan,  and  all  the  landowning  men  of  pro- 
perty there  were  over  all  England,  whose- 
soever men  they  were,  and  all  bowed  down  to 
*  Stubbs,  Const.  Hist.  §  95. 


46    NORMAN  CONQUEST  AND  FEUDALIZATION 

him  and  became  his  men,  and  swore  oaths  of 
fealty  to  him  that  they  would  be  faithful  to  him 
against  all  other  men."  ^  Nor  was  this  an  iso- 
lated case,  for  the  Conqueror  required  "that 
every  free  man  should  affirm  by  covenant  and 
oath  that  both  within  and  without  England  he 
would  be  faithful  to  King  William,  that  he  would 
join  with  him  in  holding  his  lands  and  honour 
in  all  fidehty  and  would  defend  him  against 
his  enemies."  *  Thus  the  ties  of  fealty  were 
made  to  extend  not  only  to  the  center  of  every 
circle  and  sub-circle,  but  to  every  point  of  their 
circumferences.  The  king  had  directly  a  per- 
sonal, though  not  a  tenurial,  hold  upon  every 
landowner  of  the  nation. 

But  it  was  most  of  all  by  m6ans  of  a  better 
constituted  and  more  centraHzed  administra- 
tion than  England  had  ever  known  that  the 
Norman  kings  combated  the  disruptive  tenden- 
cies of  feudalism.  With  a  genius  for  organ- 
ization they  incorporated  what  was  best  of  Anglo- 
Saxon  and  Norman  into  a  government  having 
the  source  of  its  strength  in  the  royal  power.' 

*  Saxon  Chronicle,  a.  d.  1086. 

'  Statutes  of  William  the  Conqueror,  2,  in  Stubbs,  Sd.  Chart. 
(8th  ed.)  83. 
»  Stubbs,  Const.  Hist.  §  117. 


NORMAN  CONQUEST  AND  FEUDALIZATION    47 

Under  the  feudal  system  tenure  and  jurisdic- 
tion were  hereditary.  Moreover  they  descended 
by  right  of  primogeniture.  The  sure  tendency  of 
such  descent  in  a  government  which  centered 
power  about  the  king  was  despotism,  and  prac- 
tical despotism  there  was  in  the  Norman  pe- 
riod. Indeed,  Dr.  Stubbs  beheved  that  if  the 
descent  of  the  kings  had  been  by  pure  heredity, 
the  forms  as  well  as  the  reality  of  ancient  Ub- 
erty  would  have  perished.* 

In  the  days  when  the  German  princeps  was 
the  officer  of  the  people  and  the  occasional  king 
the  mere  representative  of  the  unity  of  the  state, 
those  dignitaries  were  chosen  by  the  assembly 
of  the  freemen.  A  relic  of  this  remained  in  the 
election  of  the  Anglo-Saxon  king  by  the  witan. 
While  the  kingship  was  thus  elective,  it  was 
also  hereditary,  at  least  to  the  extent  that  the 
king  must  be  chosen  from  one  family,  although 
he  need  not  succeed  by  right  of  primogeniture. 
Thus  within  a  Kmited  field  of  candidates  the 
witan  might  exercise  a  more  or  less  formal 
choice.  Add  to  this  the  power  infrequently 
exercised  of  deposing  the  king,  and  the  witan 
will  be  seen  to  have  afforded  a  considerable 
restraint,  which  a  king  aiming   at   despotism 

*  Stubbs,  Const.  Hist.  §  118. 


48    NORMAN  CONQUEST  AND  FEUDALIZATION 

must  take  into  account.*  Of  this  restraint  the 
Norman  kings  were  never  able  entirely  to  rid 
the  crown,  for  circumstances  did  not  permit 
them  to  claim  by  hereditary  right.  Least  of  all 
could  the  Conqueror  make  such  a  claim.  It  is 
conceivable  that  he  might  have  made  his  place 
firm  by  mere  force  of  conquest,  but  his  policy 
was  to  use  pacific  methods  when  possible.  He 
desired  the  support  of  the  English,  and  there- 
fore conceded  them  some  things.  He  sought 
the  election  of  the  witan,  received  it,  and  took, 
as  had  his  Anglo-Saxon  predecessors,  the  oath 
to  rule  justly.^  Hard  upon  the  victory  at  Hast- 
ings as  this  was,  the  election  must  have  been 
granted  in  fear  and  trembling,  but  the  Con- 
queror had  retained  at  least  the  form  of  a  con- 
stitutional restraint. 

This  elective  principle  was  kept  weakly  alive 
by  his  three  successors,  none  of  whom  could 
claim  by  primogeniture  and  none  of  whom  was 
without  a  competitor  for  the  throne.  William 
Rufus  was  the  second  son  of  the  Conqueror. 
By  right  of  descent  the  throne  should  have  gone 
to  Duke  Robert,  who  moreover  had  with  him 
the  majority  of  the  barons.  But  William  was 
the  first  to  arrive  upon  the  field  and  secured 

*  Stubbs,  Cmst.  Hid.  §  58.  *  Ibid.  §§  95,  61.    * 


NORMAN  CONQUEST  AND  FEUDALIZATION    49 

the  crown  from  Archbishop  Lanf ranc  after  so 
far  bending  himself  as  to  take  the  oath  to  do 
justice,  to  defend  the  church,  and  to  follow  Lan- 
franc's  advice.*  Nor  was  this  the  end  of  his 
concessions  for  the  sake  of  getting  the  throne. 
Robert's  friends  remained  active,  and  William 
was  forced  to  win  over  the  English  by  promises 
of  good  laws,  lighter  exactions,  and  free  hunt- 
ing.^ A  third  time,  in  the  fear  of  threatened 
death  by  disease,  he  made  similar  promises.' 
While  none  of  these  was  kept,  the  king  had 
admitted  some  answerability  to  the  nation.* 

Henry  I,  as  third  son  of  the  Conqueror,  had 
a  title  inferior  to  Robert,  but  he,  like  William  II, 
was  on  the  spot  before  the  heir.  He  therefore 
received  the  election  of  the  few  barons  who 
were  with  the  late  king  at  his  death  .^  This  was 
effected  only  after  some  opposition,  we  are  told, 
but  the  claims  of  the  man  present  prevailed  over 
those  of  the  absent  heir.*  Besides  taking  the 
coronation   oath,  Henry,  as   the   price   of  his 

*  Eadmer,  Historia  Novorum,  i,  13,  in  Stubbs,  Sd.  Chart. 
(8tli  ed.)  92. 

'  William  of  Malmesbury,  Gesta  Regum,  iv,  §  306,  in  Ibid. 
'  Eadmer,  Hist.  Nov.  i,  16,  in  Ibid. 

*  Stubbs,  Canst.  Hist.  §  105. 
^  Saxon  Chron.  a.  d.  1100. 

«  Ordericus  Vitalis,  x,  14;  Will.  Malm..  O.  R.  v,  §  393. 


50    NORMAN  CONQUEST  AND  FEUDALIZATION 

crown,  issued  a  charter  of  liberties,  promising 
freedom  from  the  unjust  exactions  of  the  past. 
It  recited  that  he  was  crowned  by  the  "com- 
mon consent  of  the  barons  of  the  whole  Eng- 
lish realm,"  ^  and  that  certain  of  the  provisions 
were  made  by  the  "common  consent"  of  his 
barons.^  How  far  in  fact  he  was  from  having 
such  a  general  assent  may  be  indicated  by  the 
few  who  went  through  the  formality  of  electing 
him  and  by  the  fact  that  the  charter  is  attested 
by  only  the  bishops  of  London  and  Rochester, 
the  elect  of  Winchester,  the  earls  of  Warwick 
and  Northampton,  and  four  barons. 

Stephen  could  not  claim  as  heir,  but  made 
out  as  good  a  case  as  Norman  precedent  de- 
manded, by  being  the  first  person  to  demand 
the  throne.  He  too  received  a  formal  election, 
and  was  crowned,  but  only  the  archbishop,  the 
bishops  of  Winchester  and  Salisbury,  and  a 
very  few  nobles  participated."  Stephen  fol- 
lowed his  uncle  in  giving  charters  promising 
peace  and  justice  as  the  price  of  the  support 
of  churchmen  and  barons. 

*  Charter  of  Henry  7,  c.  i,  in  Stubbs,  Sel.  Chart.  (8th  ed.)  100. 

*  Ibid.  cc.  10,  13. 

»  Will.  Malm.,  Hist.  Nov.  i,  §  11,  in  Stubbs,  Sd.  ChaH.  (8th 
ed.)  114. 


NORMAN  CONQUEST  AND  FEUDALIZATION    51 

Now  it  seems  apparent  from  the  facts  ad- 
duced that  the  Norman  kings  after  the  Con- 
queror did  not  depend  for  their  crowns  upon 
the  election  of  any  constituted  national  as- 
sembly. What  they  did  was  to  obtain  by  pro- 
mises of  reform  the  support  of  certain  of  the 
clergy  and  barons.  Never,  so  far  as  we  may 
observe,  was  the  number  who  went  through 
the  form  of  election  even  moderately  large. 
The  few  at  hand  or  the  few  whose  support  was 
the  most  important  were  resorted  to.  They 
gave  their  assent,  and  the  rest  of  the  nation 
acquiesced.  If  further  support  were  necessary, 
the  king  would  promise  barons  or  people  cer- 
tain reforms  and  then  forget  them.  Nowhere 
is  there  apparent  a  constituted  body  which 
serves  as  the  representative  of  the  nation  in 
restraining  the  king  at  his  accession.  The  situ- 
ation is  not,  however,  devoid  of  hope  for  Uberty, 
for  in  it  all  we  see  the  king  tacitly  admitting 
his  dependence  upon  others  than  himseK,  even 
though  those  others  appear  in  the  light  of  per- 
sonal adherents  to  his  cause,  rather  than  as  the 
constitutional  donors  of  his  crown.  Those  whom 
he  needed  he  called  upon  for  help;  those  who 
helped  him  obtained  concessions.  Here  was 
at  least  the  basis  of  answerability. 


52    NORMAN  CONQUEST  AND  FEUDALIZATION 

Subject  as  the  king  was  to  practically  no 
constitutional  restraint,  the  officers  of  state 
were  royal  officers,  answerable  only  to  him. 
As  in  the  earliest  Anglo-Saxon  times  the  king's 
administrative  helpers  were  drawn  from  the 
comitatuSf  so  the  sovereign  of  the  Norman  pe- 
riod delegated  such  work  as  he  could  not  do 
in  person  to  the  members  of  his  household.* 
Foremost  of  these  was  the  chief  justiciar,  who 
acted  as  vice-king  when  his  master  was  abroad 
looking  after  his  continental  duchy.  This  of- 
ficer became  in  time,  under  the  king,  the  head 
of  all  the  judicial  and  financial  arrangements 
of  the  realm.  He  arose  from  the  necessity  under 
which  the  king  found  himself  of  not  allowing 
the  hereditary  lords  to  absorb  all  the  jurisdic- 
tion of  the  kingdom,  a  necessity  which  the  king 
met  by  attempting  to  gather  into  his  own  hands 
and  those  of  his  officers  the  control  of  all  judi- 
cature.* The  chancellor,  in  early  times  one  of 
the  chief  royal  chaplains,  was  a  sort  of  general 
secretary  of  state,  the  keeper  of  the  royal  seal, 
and  the  issuer  of  royal  writs.  Other  important 
officers  were  the  treasurer,  who  kept  the  royal 
purse  and  received  the  sheriff's  accounts,  and 

*  Stubbs,  Cmst,  Hist.  §  119. 
2  Ibid.  §  120. 


NORMAN  CONQUEST  AND  FEUDALIZATION    53 

the  chamberlain,  who  became  the  royal  auditor 
or  accountant.  Originally,  as  has  been  said, 
of  the  royal  household,  these  ministers  of  state 
were  later  appointed  from  the  ranks  of  the 
barons.  While  the  strictly  household  offices 
became  hereditary,  the  ministers  were  always 
named  by  the  king  and  were  entirely  dependent 
upon  him  for  the  retention  of  their  places.  So 
distinctly  were  they  royal  officers  that  until 
the  thirteenth  century  they  often  obtained  their 
appointment  by  purchase  from  the  king.* 

Nor  was  the  king  subject  to  much  restraint 
in  legislative  and  kindred  affairs.  There  was 
indeed  an  ill-defined  body  which,  under  the 
name  of  the  Great  Council,  succeeded  in  some 
sort  the  witenagemot.  Its  members  were  en- 
listed from  the  archbishops,  bishops,  abbots, 
earls,  barons,  and  knights.  All  of  these  were 
barons  by  tenure;  even  the  clerics  did  not  sit 
as  sapienteSy  for  baronial  tenure  had  been  forced 
upon  them.  All  of  them  were  tenants-in-chief, 
vassals  holding  land  directly  from  the  king  and 
owing  him  allegiance.  Among  the  barons  there 
were  differences  of  rank.  Some  were  greater 
and  some  were  less;  some  dealt  in  fiscal  mat- 
ters directly  with  the  king,  while  some,  among 
*  Stubbs,  Const.  Hist.  §  122. 


64    NORMAN  CONQUEST  AND  FEUDALIZATION 

whom  were  most  of  the  knights,  paid  their 
dues  to  the  sheriff.  The  king  called  to  coun- 
cil only  those  who  would  be  of  most  service 
to  him,  usually  those  larger  baronial  landown- 
ers with  whom  his  financial  connection  was 
closest.* 

In  general  this  Great  Council  was  connected 
with  just  such  business  as  was  the  witenagemot, 
but  probably  its  influence  was  of  a  weaker  sort 
in  the  Norman  period.  In  legislation  we  find 
the  statutes  of  William  the  Conqueror  made 
by  the  king,  "together  with  his  chief  men."  2 
The  ordinance  of  the  same  king  separating  the 
spiritual  and  temporal  courts  was  made  "by 
the  common  council  and  with  the  counsel  of 
the  archbishops  and  bishops  and  abbots  and 
of  all  the  chief  men  of  the  realm." '  Henry  I 
in  his  charter  speaks  of  retaining  the  forests  by 
the  "common  consent  of  his  barons"  *  and  of 
the  laws  of  Edward  which  his  father  restored 
by  the  "counsel  of  his  barons."  ^  The  fact  of 
there  being  only  nine  witnesses  to  this  docu- 

»  Stubbs,  Canst.  Hid.  §§  123,  124. 

2  Stubbs,  Sd.  ChaH,  (8th  ed.)  83. 

'  Ibid.  85. 

*  Charter  of  Henry  I,  c.  10,  in  Ibid.  100. 

"  Ibid.  c.  13.  Cf.  R.  Hoveden,  Chronica,  ii,  218. 


NORMAN  CONQUEST  AND  FEUDALIZATION    55 

ment  suggests  how  slight  was  the  influence  of 
the  council  in  this  affair.  The  vagueness  of  the 
term  "consilio  baronum  suorum"  and  the  dis- 
crepancies between  the  pretended  "council  of 
the  barons  of  the  whole  realm"  and  the  small 
numbers  of  witnesses  to  the  charters  combine 
to  arouse  the  suspicion  that  in  the  Norman 
period  the  influence  of  the  Great  Council  was 
a  theory  rather  than  a  fact,  that  the  restraint 
which  it  placed  upon  the  king  was  formal 
rather  than  efficient.  "In  private,  perhaps," 
says  Dr.  Stubbs,  "the  sovereign  listened  to 
advice,  but,  so  far  as  history  goes,  the  coun- 
selors who  took  part  in  formal  deliberations 
must  have  been  unanimous  or  subservient. 
An  assembly  of  courtiers  holding  their  lands 
of  the  king,  and  brought  together  rather  for 
pompous  display  than  for  political  business, 
may  seem  scarcely  entitled  to  the  name  of  a 
national  council.  Such  as  it  was,  however,  this 
court  of  bishops,  abbots,  earls,  barons,  and 
knights  was  the  council  by  whose  advice  and 
consent  the  kings  condescended  to  act,  or  to 
declare  that  they  acted."  * 

What  part  did  the  Great  Council  have  in 
taxation.?     The  Conqueror  retained  the  ordi- 
*  Stubbs,  Canst.  Hist.  §  123. 


66    NORMAN  CONQUEST  AND  FEUDALIZATION 

nary  revenues  of  the  English.  To  these  he 
added  the  feudal  imposts,^  which,  although  not 
strictly  taxes,  may  conveniently  be  touched 
upon  here.  A  consideration  of  a  few  of  the 
most  important  will  be  sufficient.  First,  there 
was  the  relief,  the  successor  of  the  Anglo-Saxon 
heriot.  In  its  earliest  form  the  heriot  was  the 
return  by  the  dead  warrior  of  the  arms  his  lord 
had  given  him  or  by  the  dead  peasant  of  the 
stock  similarly  acquired;  the  appropriation  by 
the  lord  of  the  serf's  chattels,  or  perhaps  the 
bequest  of  a  testator  to  his  lord  as  the  price  of 
the  lord's  warranty  of  his  will.^  The  relief  was 
an  exaction  which  the  feudal  lord  made  of  his 
vassal's  heir  before  he  would  admit  the  latter 
as  tenant.  Such  an  ancient  charge,  in  its  source 
perhaps  antedating  the  hereditary  principle, 
was  not  readily  to  be  shaken  off  when  land 
came  to  pass  from  father  to  son.  But  while 
the  heir  might  not  free  himself  entirely  from 
the  burden  of  it,  he  would  bitterly  resent  any 
arbitrary  settlement  of  the  amount  by  the  lord. 
William  Rufus  exceeded  what  was  deemed 
proper;  he  may  indeed  have  often  demanded 
the  full  value  of  the  land  and  forced  the  heir 

*  Stubbs,  Canst.  Hist.  §  100. 

'  1  PoUock  &  Maitland  (2d  ed.)  316,  317. 


NORMAN  CONQUEST  AND  FEUDALIZATION    57 

literally  to  buy  it  back.*  The  same  king  made 
of  his  right  of  consent  to  the  marriage  of  daugh- 
ters of  tenants-in-chief  a  claim  to  receive  money 
for  that  consent.^  Another  feudal  incident  was 
the  right  of  the  lord,  as  guardian  of  his  vassal's 
infant  heir,  to  enjoy  the  income  of  the  land  after 
maintaining  his  ward.  This  also  William  Ru- 
fus  abused.'  Amercements  for  ojffenses  were 
arbitrary  and  might  entail  forfeiture  of  the 
tenant's  property,  without  reference  to  the  de- 
gree of  the  crime.* 

Similar  to  wardship  was  the  right  of  the  king 
to  hold  the  profits  of  vacant  churches  and  turn 
them  over  to  the  new  prelates.  William  kept 
the  sees  or  abbeys  vacant  for  long  periods,  gave 
the  dependent  monks  only  a  bare  subsistence, 
and  appropriated  the  rest  of  the  revenue.^ 
Such  arbitrary  exactions  of  course  fell  heavily 
upon  the  whole  landowning  class,  as  the  tenants- 
in-chief  would  seek  to  make  themselves  whole 
by  similar  demands  from  their  own  tenants.  We 
have  here  another  illustration  of  the  centraHza- 
tion  of  authority  in  the  king,  of  the  approach 
to  despotism.    We  can  imagine  that  the  nation 

*  ChaHer  of  Henry  I,  2,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  100. 
Note  the  contrast  between  "redimet"  and  "relevabit." 
2  Ibid.  3.       '  Ibid.  4.       *  Ibid.  8.       ^  Ord.  Vit.  viii,  8. 


68    NORMAN  CONQUEST  AND  FEUDALIZATION 

grumbled,  but  we  know  of  no  decided  consti- 
tutional protest.  So  strong  were  the  kings  that 
only  in  the  days  of  their  own  seeking  were  they 
to  be  moved  to  buy  support  for  their  claims  to 
the  throne  by  charters  promising  reforms  in 
these  matters.  That  no  very  eflScient  part  in 
gaining  them  can  be  assigned  to  a  legislative 
council  we  have  seen.  On  the  other  hand,  as 
already  suggested,  they  had  importance  as 
constructive  admissions  that  the  king  was  not 
absolute  in  his  power;  yet  how  nearly  absolute 
he  was  may  be  judged  from  the  promptness 
with  which  he  forgot  his  promises  as  soon  as  he 
was  firmly  enthroned.  It  was  in  their  griev- 
ances, however,  that  the  landed  men  were  to 
find  their  strength. 

In  the  proper  field  of  taxation  we  find  the 
Danegeld,  which  had  been  aboHshed  by  Ed- 
ward the  Confessor,  revived  by  William  the 
Conqueror  at  the  rate  of  six  shillings  on  the 
hide,  three  times  the  ancient  amount.^  Cor- 
responding to  the  Danegeld  of  the  country, 
there  was  the  auxilium  hurgorum  of  the  bor- 
oughs.* The  Domesday  Survey  of  1086  was 
made  that  the  king  might  know  the  geldable 

*  Florence  of  Worcester,  A.  d.  1084;  Sax.  Chron.  a.  d.  1083. 
'  Stubbs,  Const.  Hist.  §  126. 


NORMAN  CONQUEST  AND  FEUDALIZATION    69 

property  of  the  nation,  the  number  of  hides 
or  carucates,  the  number  of  plough  oxen,  the 
annual  value  of  the  land.i  We  have  no  evidence 
that  in  the  levy  of  this  tax  any  restraint  was 
put  upon  the  king  by  the  Great  Council.  On 
the  contrary,  the  words  of  the  chroniclers  sug- 
gest nothing  but  a  purely  royal  exaction.*  On 
the  occasion  of  his  accession  Stephen  promised 
to  abandon  unjust  taKation  and  especially  to 
give  up  for  ever  the  Danegeld,  "but  he  kept 
none  of  these  oaths." '  Taxation  was  appar- 
ently of  the  royal  prerogative.  Even  if  "it 
must  be  supposed  that  the  king  would  lay  before 
his  barons  any  plan  for  increasing  the  existing 
burdens,  and  that  such  announcement  would 
be  regarded  as  necessary  for  the  validity  of  the 
exaction,  [yet]  the  silence  of  the  counselors  or 
their  ready  assent  would  be  a  matter  of  form."  * 
K  the  king  had  deferred  to  the  council  we  should 
not  have  such  a  mass  of  complaints  of  illegal 
taxation. 

*  Maitland,  D.  B.  and,  Beyond,  4,  5. 

*  Henry  I  did  indeed  speak  of  "the  aid  which  my  barons 
gave  me."  2  Chronicon  Monasterii  de  Abingdon,  113.  But  the 
"giving,"  judging  from  the  examples,  was  doubtless  not  volun- 
tary. 

'  Henry  of  Huntingdon,  lib.  viii. 

*  Stubbs,  Const.  Hist.  §  125. 


^^ 


60   NORMAN  CONQUEST  AND  FEUDALIZATION 

Possibly  the  king  allowed  the  members  of 
his  Great  Council  a  larger  influence  in  the 
course  of  general  business,  as  in  the  election 
of  bishops,  the  discussion  of  foreign  and  ecclesi- 
astical policy,  war  and  peace,  royal  marriages. 
On  the  whole,  however,  the  council  must  have 
been  so  overshadowed  by  the  king  as  to  be  but 
a  faint  forecast  of  the  constitutional  share  of 
the  people  in  the  affairs  of  state. 

The  center  of  the  financial  and  administra- 
tive machinery  through  which  the  king  acted 
was  the  Court  of  Exchequer.  From  the  time 
of  Henry  I  this  body  consisted  of  the  great  of- 
ficers of  the  household  and  state,  of  whom  some- 
thing has  already  been  said,  and  of  specially 
appointed  justices  or  barons,  the  chief  justiciar 
presiding.  To  this  court  the  sheriffs  must  ac- 
count for  the  income  of  the  shires.  This  rev- 
enue consisted  of  four  parts.  (1)  The  "firma" 
or  ferm  of  the  shire  was  a  composition  for  the 
ancient  profits  of  the  king,  including  the  rev- 
enue of  land  belonging  to  the  king,  the  early 
hospitality  due  to  the  crown  in  his  progresses, 
court  fines,  and  the  like.  These  were  computed 
at  a  fixed  sum,  which  was  the  rent  at  which  the 
county  was  farmed  to  the  sheriff.  The  ferm 
he   must   pay   annually,   winning   profits   and 


NORMAN  CONQUEST  AND  FEUDALIZATION    61 

standing  losses.  Before  accounting  he  paid  the 
royal  expenses  for  his  county:  regal  benefac- 
tions to  religious  houses,  the  maintenance  of 
the  crown  lands,  the  expenses  of  public  busi- 
ness, and  the  cost  of  living  and  travel  of  the 
king  and  retinue  while  in  the  county.  (2)  The 
Danegeld  and  auxilium  burgorum  must  also 
be  accounted  for.  These  too  were  compounded. 
(3)  There  were  the  proceeds  of  pleas  of  the 
crown, — the  fines  for  ojffenses  which  had  been 
taken  from  the  ordinary  jurisdiction  of  the  shire 
and  hundred,  and  were  tried  before  the  sheriff 
as  justice  of  the  crown.  Examples  of  these  pleas 
were  found  in  the  murdrum,  or  fine  payable 
by  the  hundred  in  which  a  man  was  slain  who 
was  not  proved  to  be  an  Englishman,  in  fines 
for  non-attendance  at  the  hundred  or  shire 
court,  in  breach  of  the  forest  law.  (4)  Lastly, 
the  sheriff  must  account  for  the  feudal  in- 
come.* 

The  sheriff  became  the  great  administrative 
oflficer  of  the  shire,  no  longer  under  the  super- 
vision of  an  ealdorman  and  subject  to  no  con- 
trol from  his  former  adviser,  the  bishop.  He  was 
appointed  by  the  king,  although  in  a  few  cases 
the  office  became  hereditary.    In  any  event  he 

*  Stubbs,  Const.  Hist.  §  126. 


62    NORMAN  CONQUEST  AND  FEUDALIZATION 

was  the  oflScer  of  the  king,  to  whom  alone  he  was 
responsible.  As  executive  in  matters  judicial, 
military,  and  financial  in  his  shire,  he  did  not 
find  his  ancient  jurisdiction  enlarged;  he  only 
possessed  power  more  unrestricted  in  every 
direction  except  kingward.*  Since  we  find 
fiscal  administration  entirely  royal,  we  look  for  a 
similar  centralization  in  judicature.  William  II 
administered  justice  for  the  profits.  In  this 
he  did  hardlymore  than  any  other  Norman  king. 
While  Henry  I  may  have  believed  that  a  nation 
in  which  justice  is  done  is  more  prosperous 
and  better-natured,  hence  more  easily  taxable, 
revenue  was  even  with  him  a  chief  object.'' 

But  centralization  of  justice  in  the  king  was 
slower  than  the  similar  process  in  legislation 
and  state  business,  for  the  king  met  the  old  local 
courts,  which,  though  theoretically  under  his 
cflScers,  were  not  yet  suflficiently  close  to  the 
sovereign  to  be  really  royal.  The  king's  imme- 
diate jurisdiction  remained  for  a  time  extraor- 
dinary; it  was  for  great  causes  and  great 
men.  The  king  could  call  causes  into  his  own 
court,  and  did  so  when  the  litigants  were  rich 
and  powerful  enough  to  buy  the  royal  writ.  Pleas 
of  the  crown  were  mostly  left  for  the  sheriffs 

*  Stubbs,  Canst.  Hist.  §§  98,  99.  '  Ibid.  §  127. 


NORMAN  CONQUEST  AND  FEUDALIZATION    63 

to  try.  Sometimes  the  king  sent  a  baron  or 
prelate  or  a  commission  to  preside  over  a  cause 
in  the  shiremoot.  Thus  he  drew  the  communal 
courts  closer  to  himself.^  When  he  sat  person- 
ally, he  was  in  earlier  times  surrounded  by 
the  witenagemot,  or  its  successor  the  Great 
Council.  Here  he  probably  had  his  own  way, 
although  his  counselors  theoretically  could, 
and  often  did,  exercise  the  office  of  justice.^* 
In  this  court  of  the  Great  Council  were  ad- 
judged cases  between  tenants-in-chief  and  the 
king's  personal  causes.  By  the  time  of  Henry  I 
another  court  called  the  Curia  Regis  had  be- 
come somewhat  established.  It  was  composed 
of  almost  identically  the  same  members  as  the 
Court  of  Exchequer,  hence  was  completely 
under  the  king's  control.  He  personally  pre- 
sided when  able;  in  his  absence  the  chief  jus- 
ticiar represented  him.  This  court  considered 
causes  in  which  the  king's  interest  was  con- 
cerned; such  appeals  as  litigants  were  power- 
ful enough  to  obtain;  cases  in  which  the  powers 
of  the  lower  courts  were  exhausted,  or  where 
they  had  failed  to  do  justice;  quarrels  between 
tenants-in-chief  who  were  too  strong  to  submit 
to  the  shire  and  hundred  courts.  It  had  a  rough 
»  Stubbs,  Canst.  Hist.  §  99.  '  Ibid.  §  125. 


64    NORMAN  CONQUEST  AND  FEUDALIZATION 

sort  of  equity  jurisdiction  over  cases  in  which 
the  old  courts  were  too  antiquated  to  do  justice; 
it  had  also  some  criminal  jurisdiction.  This 
court  in  time  became  the  supreme  court  of  all 
England.  Henry  I  sometimes  sent  members 
of  it  to  sit  at  the  county  court,  as  had  the  earlier 
commissions,  and  this  practice,  although  not 
regular,  did  something  to  attract  to  the  court 
of  the  king  the  local  justice.* 

The  shire  and  hundred  courts  persisted  in 
the  Norman  period,  and,  although  made  the 
means  of  exactions  or  other  irregularities,  were 
restored  to  the  form  of  Edward  the  Confessor's 
time  by  Henry  I.'  As  in  Anglo-Saxon  days, 
the  shire  court  was  attended  by  the  lords  of 
lands  or  their  stewards,  and  by  the  reeve,  priest, 
and  four  men  of  each  town.  It  met  twice  a  year 
under  the  presidency  of  the  sheriff  or  his  deputy, 
and  the  suitors  were  the  judges.  While  its 
jurisdiction  was  criminal  as  well  as  civil,  the 
king  had  taken  a  good  part  of  the  former  (this 
process   began   in  Anglo-Saxon    times ''),   and 

*  Stubbs,  Cmst.  Hist.  §  127;  1  PoU.  &  Mait.  (2d  ed.)  108- 
110. 

*  Order  for  the  Holding  of  the  Courts  of  the  Hundred  and 
the  Shire,  in  Stubbs,  Sd.  ChaH.  (8th  ed.)  103. 

=»  Stubbs,  Canst.  Hist.  §  73. 


NORMAN  CONQUEST  AND  FEUDALIZATION    65 

now  royal  writ  cut  seriously  into  the  latter.  The 
regular  court  of  the  hundred,  meeting  twelve 
times  a  year,  found  most  of  its  business  in  the 
jurisdiction  of  small  debts.  Twice  a  year  it  met 
for  the  view  of  frankpledge  or  sheriff's  toum, 
the  inspection  of  the  local  police  system.* 

A  few  words  about  seigniorial  justice  must 
be  said.  The  great  lords  who  held  the  larger 
estates  called  manors  had  jurisdiction  which 
varied  with  the  conditions  attached  to  their 
tenures.  First,  they  usually  had  a  court  baron 
or  hallmoot  making  by-laws  and  transacting 
the  local  business  of  the  freeholders  in  the  man- 
ors corresponding  to  the  old  townships.  Second 
was  the  court  customary  in  which  was  done 
the  business  of  the  villeins.  Where  the  lord  had 
a  grant  of  sake  and  soke  there  was  thirdly  a 
court  leet  exercising  a  criminal  jurisdiction  cut 
out  of  or  superseding  that  of  the  hundred,  ac- 
cording to  the  size  of  the  manor.  Its  suitors 
were  exempt  from  attendance  upon  the  crim- 
inal business  of  the  hundred.  K  the  lord  had 
a  grant  of  the  view  of  frankpledge,  his  suitors 
were  excused  from  the  sheriff's  toum.  In  the 
great  manors  called  honors,  which  were  almost 
shires  in  themselves,  the  suitors  were  freed  from 

*  Stubbs,  Canst.  Hist.  §  128. 


66    NORMAN  CONQUEST  AND  FEUDALIZATION 

attendance  upon  all  the  old  popular  courts. 
The  procedure  in  the  manorial  courts,  as  well 
as  the  suitors,  was  the  same  as  in  the  f  olkmoots ; 
the  newer  courts  were  merely  public  jurisdic- 
tions in  private  hands.  Being  hereditary,  the 
only  ways  for  the  crown  to  recover  them  were 
by  forcing  forfeiture  (which  was  seldom  re- 
sorted to)  or  by  legal  enactment  placing  them 
under  central  administration  (which  was  to 
come  in  time).* 

The  picture  presented  in  Norman  times  is 
of  a  nation  under  a  king  who  is  in  fact  a  despot. 
In  legislation,  in  administration,  in  taxation 
we  see  the  sovereign  acknowledging  no  other 
power  except  when  forced  to  buy  support.  His 
throne  once  assured,  he  again  assumes  abso- 
lutism. Only  in  local  jurisprudence  is  he  sub- 
ject to  any  check,  and  even  though  the  suitors 
here  give  judgment,  we  see  the  king  shaping 
the  courts  into  a  regal  system  by  the  pressure  of 
his  sheriffs  and  specially  appointed  judges.  The 
manorial  courts  in  the  hands  of  the  great  land- 
owners do  indeed  resist  the  realization  of  local 
royal  justice,  but  this  resistance  is  a  threat  to 
liberty  rather  than  a  step  in  its  direction.  No- 
where is  there  a  healthy  popular  influence  in 

*  Stubbs,  Ccmst.  Hist.  §  129. 


NORMAN  CONQUEST  AND  FEUDALIZATION    67 

government  except  at  the  bottom,  where  the 
freeholders  still  transact  by  ancestral  German 
right  their  petty  local  business  and  sit  in  the 
judgment  of  peers.  For  the  moment  the  barons 
are  in  eclipse.  So  far  their  enormous  powers 
have  been  exerted  by  each  man  for  his  separate 
ends.  The  anarchy  of  Stephen's  reign  has  re- 
sulted. But  the  time  when  they  will  find  in  the 
pressure  of  taxation  a  common  cause  is  not 
far  distant. 


IV 

JUDICIAL    REFORMS.    TRIAL    BY    JURY 

The  inherent  tendency  of  the  feudal  system 
to  the  acquirement  of  power  by  the  great  feuda- 
tories has  been  noted.  A  second  tendency,  set 
in  motion  by  the  king,  has  been  observed  as 
correcting  the  first  by  centralization,  but  has 
not  been  followed  to  its  end.  That  it  was  not 
wholly  evil,  although  despotic,  has  been  sug- 
gested, for  the  disruptive  forces  must  be  over- 
come if  the  nation  was  to  be  preserved.  To  ac- 
complish this  the  popular  strength  was  still 
inadequate,  so  the  king  must  do  it.  The  liberty 
of  the  nation  would  later  be  won  more  easily  by 
an  attack  upon  royal  prerogative  than  by  one 
upon  scattered  feudatories.  Indeed,  until  the 
old-time  provincial  feeling  of  the  people  was 
changed  by  the  very  process  of  centralization 
into  a  full  realization  of  national  unity,  the 
mighty  blows  for  self-government  could  not  be 
struck,  or  even  desired.  So  in  the  completion 
of  the  second  tendency  we  shall  see  the  begin- 
ning of  a  third,  not  centrifugal  like  the  first. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY       69 

but  one  which  will  in  the  end  substitute  the 
popular  will  for  the  royal  command  as  the  ex- 
pression of  central  authority.  Nowhere  do  we 
find  the  two  tendencies  more  nicely  entangled 
than  in  the  perfecting  of  the  judicial  organiza- 
tion during  the  last  half  of  the  twelfth  century, 
a  review  of  which  will  reward  us  with  some 
definite  evidence  of  the  contributions  of  the 
landed  man  to  civil  liberty. 

During  the  reign  of  Henry  II  the  Curia  Regis 
overshadowed  the  Exchequer.  Whereas  in 
Norman  times  the  court  proper  had  been  the 
judicial  phase  of  the  Exchequer,  the  Exchequer 
now  became  rather  the  fiscal  branch  of  the 
Curia  Regis.  Judicature,  not  financial  adminis- 
tration, became  the  chief  business  of  this  body 
of  the  king's  ministers.  Furthermore  the  Curia 
Regis  was  brought  into  a  closer  touch  with  the 
local  courts  and  obtained  such  control  of  them 
that  it  became  the  center  of  a  related  system 
which  has  in  the  main  persisted  to  the  present 
day.* 

In  the  Curia  Regis  the  king  himself  sat  and 
personally  did  justice,*  During  the  earlier 
days  of  Henry  II  it  was  probably,  as  in  the 

*  Stubbs,  Canst.  Hid.  §  163. 

*  Dialogus  de  Scaccario,  lib.  i,  c.  iv. 


70       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

time  of  Henry  I,  a  tribunal  of  extraordinary 
jurisdiction,  with  a  small  but  increasing  num- 
ber of  appeals.  In  the  course  of  time,  however, 
the  long  absence  of  the  king  from  the  country, 
together  with  the  rapid  increase  of  resort  to  the 
court,  required  that  the  bulk  of  the  work  should 
be  done  without  the  king's  presence,  although 
still  in  his  name.  The  number  of  justices  grew 
with  the  increase  of  business  to  eighteen,  but 
the  court  still  lacked  organization,  and  repre- 
sentations to  Henry  H  of  failures  of  justice  led 
the  king  in  1178  to  reduce  the  number  to  five, 
who  were  "  to  hear  all  the  complaints  of  the  king- 
dom and  to  do  right,  and  not  to  depart  from 
the  Curia  Regis."  From  this  dates  the  Curia 
Regis  "in  Banco,"  later  to  become  the  King's 
Bench.  In  it  the  king  did  not  sit  except  on 
especial  occasions,  although  nominally  all  pro- 
ceedings there  were  coram  rege.  Matters  which 
this  court  could  not  untangle  were  to  be  referred 
to  the  king,  who  would  decide  them  with  the 
advice  of  the  wise  men  of  the  kingdom.  This 
reorganized  Curia  Regis  had  jurisdiction  not 
only  over  cases  in  which  the  revenue  or  the 
rights  of  the  king  were  concerned,  but  also  over 
private  litigation  in  which  he  had  no  interest 
except  as  supreme  judge,  indeed  over  all  the 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       71 

business  of  its  later  off-shoots,  the  King's  Bench, 
Exchequer  and  Common  Pleas.  "It  was  no 
longer  to  be  an  extraordinary  tribunal,  a  court 
for  great  men,  for  great  causes,  for  matters  that 
concerned  the  king;  it  was  to  become  an  or- 
dinary tribunal  for  the  whole  realm."  ^ 

In  this  process  of  centraKzation  we  see  the 
king  becoming  stronger  as  the  judicial  head  of 
the  nation;  and  yet  his  position  had  elements 
of  weakness  to  royal  prerogative  but  for  which 
the  cause  of  civil  hberty  would  have  suffered 
infinite  damage  from  abuse  of  regal  control 
of  the  machinery  of  justice.  Fortunately  the 
very  assumption  of  judicial  authority  by  the 
king  so  overwhelmed  him  that  he  was  forced 
to  delegate  it  more  than  ever.  He  even  had  to 
resort  to  the  erection  of  a  new  court  of  very 
superior  rank  in  which  he  did  not  sit.  It  is  true 
that  the  judges  were  his  appointees  and  an- 
swerable to  him,  but  it  has  well  been  said  that 
"whenever  any  number  of  men  are  collected 
and  incorporated,  possessing  a  known  name, 
and  invested  with  definite  functions,  they  ac- 
quire independence,  and  may  ultimately  thwart 
or  rival  the  power  to  which  they  owe  their  legal 

*  1  PoU.  &  Mait.  (2d  ed.)  153;  Stubbs,  Canst.  Hist.  §  163; 
Benedict,  i,  207,  in  Stubbs,  Sd.  ChaH.  (8th  ed.)  131. 


72       JUDICIAL  REFORMS.   TRIAL  BY  JURY 

existence."  ^  So  in  this  case  the  judges  of  the 
Curia  Regis,  without  the  presence  of  the  king 
were  placed  where  they  would  more  and  more 
be  able  to  declare  the  pure  law  of  England  un- 
influenced by  royal  will.  Not  that  this  wane 
of  the  king's  impress  upon  judicature  was 
rapid,  nor  that  the  danger  of  royal  interference 
in  justice  passed  within  a  few  years  or  a  century 
or  two  centuries,  but  that  the  way  was  opened 
for  the  gradual  growth  of  judicial  administra- 
tion independent  of  royal  caprice.^    Nor  was 

*  1  Palgrave,  Eng.  Com.  274. 

'  Now  and  then  the  sovereigns  did  sit  in  the  King's  Bench. 
Edward  I  sat  in  certain  Scotch  cases.  Burrow's  Reports,  851. 
But  perhaps  this  was  in  the  exercise  of  jurisdiction  resulting  to 
him  as  feudal  lord  of  Scotland,  for  we  are  told  that  in  his  time 
the  king  had  lost  the  right  to  interfere  in  private  causes.  4  Black- 
stone,  Commentaries,  426.  Even  if  the  king  sat  in  later  times,  he 
was  no  more  than  a  dignified  figure.  "In  this  court;  the  kings  of 
this  realm  have  sit  in  the  high  bench,  and  the  judges  of  that  court; 
on  the  lower  bench  at  his  feet;  but  judicature  only  belongeth 
to  the  judges  of  that  court,  and  in  his  presence  they  answer  all 
motions."  Coke,  Fourth  Institvte,  73.  At  the  time  of  Henry  IV, 
at  least,  and  doubtless  earlier,  it  was  law  that  none  could  render 
himself  to  the  judgment  of  the  king.  The  sovereign  could  not  give 
justice  in  person  even  if  the  subject  asked  it.  Coke,  Fourth  Inst. 
71.  "Where  the  king's  presence  is  no  longer  needed  except  as  a 
form,  he  will  not  long  remain.  But  though  his  actual  presence 
passed,  men  invented  a  fiction.  "The  king  is  supposed  in  con- 
templation of  law  to  be  always  present;  but  as  that  is  in  fact 
impossible,  he  is  there  represented  by  his  judges,  whose  power 


'       JUDICIAL  REFORMS.   TRIAL  BY  JURY       73 

the  delegation  of  judicial  business  the  sole,  or 
even  the  most  influential  cause  of  the  final  loss 
of  royal  prerogative.  That  it  was  one  of  the 
causes  is  sufficient  for  our  present  inquiry. 

The  reorganization  of  the  Curia  Regis  must 
have  been  occasioned  in  part  by  the  demand 
of  the  people  for  a  better  administration  of  jus- 
lice.  The  Anglo-Saxon  kings  in  their  progresses 
had  come  in  a  large  degree  to  oversee  the  Com- 
mon Pleas,*  and  the  people  looked  more  and 
more  to  the  king  for  justice.  The  Norman  kings 
kept  up  the  progress  to  some  extent,  but  could 
not  give  it  very  close  attention  on  account  of 
their  frequent  and  long  absences  upon  the  Con- 
tinent. Now  this  body  of  Common  Pleas  con- 
stantly increased,  and  with  it  the  king's  justice 
came  into  greater  demand.  With  the  total  of 
business    increasing    and   the    available   royal 

is  only  an  emanation  of  the  royal  prerogative."  3  Bl.  Com.  24. 
Even  Blackstone's  fiction  is  now  negligible;  it  survives  only  in 
the  name  of  the  court  and  in  the  king's  name  on  the  writs;  but 
these  are  only  a  shadow  of  antiquity,  innocent  bits  of  conserva- 
tism which  have  no  substance.  The  day  of  prerogative  is  past. 
The  court  is  the  nation's,  not  the  king's;  but  the  king  is  the 
dignified  element  of  the  nation,  its  personification,  so  it  does  no 
harm  to  call  the  people's  court  the  King's  Bench.  It  should 
serve  to  remind  the  people  that  they  have  won  their  hberties 
from  the  king. 

*  Maine,  Early  Law  and  Custom,  187. 


74        JUDICIAL  REFORMS.  TRIAL  BY  JURY 

time  diminished,  it  is  easily  imaginable  that 
respectful  pressure  would  be  brought  upon  the 
king  to  relieve  the  situation  by  some  process  of 
delegation  to  his  justices  and  by  some  organi- 
zation of  his  court. 

An  illustration  of  the  gravity  of  the  situation 
may  be  found  in  the  familiar  story  of  Richard 
de  Anesty.*  Having  a  suit  for  the  recovery  of 
land  which  he  claimed  as  heir,  Anesty  was 
forced  during  the  years  1158  to  1163  to  be  in 
constant  pursuit  of  Henry  II.  Three  times  he 
had  to  send  messengers  to  the  king,  then  in 
Normandy,  for  the  royal  writ;  once  he  went 
himself  for  a  similar  purpose.  Finally,  when 
Henry  returned  to  England,  Anesty  had  to  fol- 
low him  pretty  much  all  over  the  country  before 
he  got  a  hearing.  Even  then  it  was  at  the  ex- 
pense of  a  small  douceur  to  the  queen  and  of  a 
handsome  bribe  to  the  king.^  Meanwhile,  for 
the  support  of  his  oath-helpers  whom  he  had 
to  carry  with  him,  his  traveling  expenses,  fees, 
bribes  and  all,  he  had  to  resort  to  usurious  loans 

*  2  Palgrave,  Eng.  Com.  v,  et  seq. 

^  The  story  further  illustrates  the  need  and  perhaps  the 
cause  for  chapter  40  of  Magna  Carta,  "Nulli  vendemus  .  .  . 
rectum  aut  justitiam,"  for  even  the  admirable  Henry  11  sold 
justice.  So,  too,  did  the  venerated  Edward  the  Confessor. 
1  Palgrave,  Eng.  Com.  650. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       75 

from  the  Jews.  Doubtless  this  incident  was  typ- 
ical of  many.  Unquestionably  those  who  suf- 
fered such  grievances  the  most  were  the  men  of 
large  landed  interests  whose  causes,  being  the 
most  important  of  the  realm,  were  probably  al- 
most the  sole  ones  carried  to  the  king's  court.  It 
took  wealth  to  press  a  suit  in  such  a  court,  and 
landowners  were  almost  the  only  wealthy  men. 
Among  the  merchants  only  were  there  found 
men  of  much  personal  property,  and  they  did 
not  come  much  under  the  regular  judicial  ad- 
ministration, for  in  exchange  for  grants  of  taxes 
the  boroughs  early  won  independent  exercise  of 
jurisdiction  in  their  own  courts  and  according  to 
their  own  customs. *  Fortunately  those  who  thus 
suffered  the  most  were  the  barons  who  could 
vindicate  their  right  to  better  justice. 

That  the  landowners  did  not  keep  their 
grievances  to  themselves,  but  complained  to 
the  king  seems  reasonably  certain.  It  appears 
that  in  1178  Henry  II  made  an  investigation 
into  the  workings  of  justice  and  found  that  they 
were  not  as  they  should  be.  The  result  was  the 
choosing  of  the  new  Curia  Regis  of  five  jus- 
tices, "with  the  advice  of  the  wise  men  of  the 
kingdom."  ^    The  use  of  the  council  here,  in 

*  Stubbs,  Canst.  Hist.  §  165;  1  PoU.  &  Mait.  (2d  ed.)  643. 
2  Benedict,  i,  207,  in  Stubbs,  Sd.  Chart.  (Sth  ed.)  131. 


76       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

connection  with  the  undoubted  fact  of  the  griev- 
ances, suggests  that  some  very  considerable  in- 
fluence in  the  reorganization  of  the  court  was 
exerted  by  the  landowners.  Less  than  forty 
years  later  the  barons  wrung  from  the  king  the 
provision  that  the  Common  Pleas  should  no 
longer,  as  they  did  meanwhile,  follow  the  per- 
son of  the  king  or  justiciar,*  but  should  be  held 
at  Westminster,^  to  the  great  cheapening  and 
expedition  of  justice.  Here  then  is  one  point 
where  the  landed  man  touched  the  judicial  sys- 
tem and  bettered  it,  thus  aiding  the  cause  of  civil 
liberty. 

More  important  than  the  delegation  of  the 
king's  judicial  authority  or  than  the  reorgan- 
ization of  his  court  was  the  manner  in  which 
this  court  reached  down  even  further  than  in 
the  Norman  period  and  drew  local  judicature 
into  a  central  system,  thus  causing  most  of  the 
large  increase  which  has  been  noted  in  the  busi- 
ness of  the  Curia  Regis.  We  must  consider 
somewhat  this  process  of  amalgamation  of  the 
national  and  local  justice.    In  it  we  find  as  the 

*  Although  the  king  did  not  sit  in  the  deUberations  of  the 
Curia  Regis  after  1178,  the  court  did  go  where  he  or  his  justiciar 
(in  the  king's  absence  from  the  realm)  went.  The  dependence 
of  the  court  upon  the  person  of  the  king  was  slowly  lost  sight  of. 

'  Magna  Carta,  c.  17. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       77 

most  important  factors  the  introduction  of  itin- 
erant justices  and  of  trial  by  jury. 

In  connection  with  itinerant  justices,  we 
again  find  that  royal  judicature  was  at  bottom 
fiscal.  During  the  reign  of  Henry  I,  to  recur 
to  Norman  times,  we  find  that  oflficers  of  the 
Exchequer  were  sent  throughout  the  country 
to  assess  the  revenue  and  see  that  all  the  lands 
bore  their  share  of  the  taxes  and  imposts.*  Now 
and  then  we  hear  of  justices  of  the  king  holding 
a  county  court,  but  seemingly  these  are  unusual 
cases,  not  instances  of  a  regular  practice.^  Prob- 
ably the  system  gained  regularity  upon  the 
fiscal^side  before  it  did  upon  the  judicial,  and 
succeeded  so  well  in  the  former  respect  that  it 
was  adopted  in  the  latter.  The  principle,  first 
invented  as  a  means  by  which  the  king  could 
secure  his  fiscal  rights  from  the  landed  class, 
met  one  need  so  fully  that  it  was  extended  to 
another  and  became  a  security  of  the  rights  of 
man  against  man  and  of  the  subject  against 
the  king.  Itinerant  justice,  as  a  prompt  and 
cheap  means  of  obtaining  right  from  the  king, 
was  an  inestimable  boon.    Here  again  we  find 

*  Stubbs,  Const.  Hist.  §  126. 

'  See  the  cases  of  Ralph  Basset,  Stubbs,  Const.  Hist.  §  127; 
and  of  Constable  Hemy  of  Essex,  Ibid.  §  137. 


78       JUDICIAL  REFORMS.   TRIAL  BY  JURY 

the  landed  man  vitally  connected  with  the  de- 
velopment of  a  national  judicature,  which,  at 
first  royal,  was  to  become  in  time  divorced  from 
prerogative  and  essentially  popular. 

But  it  was  not  only  because  the  judicial  iter 
was  copied  from  and  in  early  times  made  in 
conjunction  with  the  fiscal  iter,  that  the  landed 
man  influenced  it;  he  had  also  something  to 
do  with  the  occasion  of  its  adoption  as  a  definite 
system.  That  occasion  was  the  taking  of  the 
assizes.  Until  the  introduction  of  these  we  have 
no  record  of  anything  like  a  system  of  judicial 
circuits.  If  we  find  one  iter  it  seems  unrelated 
to  any  other;  it  is  not  part  of  a  scheme.  But 
simultaneously  with  the  assizes  came  the  di- 
vision of  England  into  circuits,  and  the  sending 
out  of  justices  according  to  a  definite  system.* 
Then,  so  far  as  we  can  observe,  itinerant  justices 
first  became  what  may  properly  be  called  an 
institution.  Some  connection  this  institution 
must  therefore  be  inferred  to  have  with  the  as- 

*  England  seems  first  to  have  been  divided  into  circuits  by 
the  Assize  of  Northampton.  The  assizes,  being  local  inquests 
before  the  king's  court,  could  be  held  only  by  judges  sent  out 
into  the  country.  The  largely  increased  business  of  the  assizes, 
added  to  the  hearing  of  presentments  assigned  to  such  judges 
by  the  Constitutions  of  Clarendon,  demanded  the  organization 
of  itinerant  justice  into  circuits. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY       79 

sizes;  and  the  inference  finds  support  in  the 
provision  of  Magna  Carta  that  itinerant  justices 
shall  be  sent  out  four  times  a  year  to  take  the 
assizes  of  Novel  Disseisin,  Mort  d' Ancestor 
and  Darrein  Presentment.*  What  we  shall  here- 
after say  of  the  influence  of  the  landed  man 
through  the  assize  upon  trial  by  jury  will  there- 
fore help  us  to  reaUze  his  share  in  the  intro- 
duction of  itinerant  justices. 

Another  illustration  of  the  increasing  rela- 
tion between  the  county  courts  and  the  Curia 
Regis  is  found  in  the  events  of  1170.  Henry  II 
returned  from  Normandy  to  be  met  by  com- 
plaints  of  the  oppressions  of  the  sheriffs  and 
bailiffs.  Perhaps  he  would  not  so  willingly  have 
made  any  motion  in  the  matter  had  he  not  been 
anxious  to  have  his  son  Henry  crowned.  With 
a  view  to  getting  the  consent  of  the  barons  to 
this  unusual  proceeding  he  was  quite  willing  to 
yield  to  the  demand  for  relief  from  the  sheriffs, 
and  in  the  Great  Council  he  removed  all  the 
sheriffs  and  issued  a  commission  for  an  inquiry 
into  their  acts  by  barons  deputed  to  take  oaths 
of  all  the  barons,  knights  and  freeholders  of 
each  county.  Most  important  of  all,  he  re- 
placed the  old  sheriffs,  who  were  mostly  local 
*  Mag.  Cart.  c.  18. 


80       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

magnates  with  an  inclination  to  feudal  admin- 
istration of  justice,  by  officers  of  the  Exchequer. 
Thus  we  see  another  step  in  the  process  of  con- 
centration. That  the  complaints  of  the  op- 
pressed landowners  had  some  influence  upon 
the  reform  is  clear;  on  this  occasion  the  Great 
Council  must  have  given  a  consent  which  was 
somewhat  more  than  formal.*  The  sheriffs 
now  began  to  lose  judicial  power,  being  pushed 
aside  by  the  new  itinerant  justices.  They  had 
formerly  not  only  presided  in  the  county  courts, 
but  had  also  as  justices  held  Pleas  of  the  Crown. 
In  1166  the  Assize  of  Clarendon  shows  them 
the  equals  of  the  itinerant  justices,  separately 
receiving  the  presentment  of  the  grand  jury.' 
Ten  years  later,  in  the  Assize  of  Northampton, 
the  itinerant  justices  held  first  place.'  In  1194 
sheriffs  were  forbidden  to  be  justices,  and  elect- 
ive coroners  were  provided  to  keep  Pleas  of  the 
Crown.*  Magna  Carta  completed  the  dis- 
placing of  the  sheriffs  as  justices  by  declaring 
that  neither  they  nor  the  coroners  nor  other 

*  Sel.C?uiH.(8\hed.)U7;  Benedict,!, 4, inlbid.  130; Stubbs, 
Const.  Hist.  §  142. 

*  Assize  of  Clarendon,  1,  in  Stubbs,  Sd.  Chart.  (8tL  ed.)  143. 
»  Stubbs,  Sd.  Chart.  (8th  ed.)  150. 

*  Form  of  Proceeding  on  the  Judicial  Visitation,  cc.  20,  21, 
in  Stubbs,  Sd.  ChaH.  (8th  ed.)  259. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY         81 

bailiffs  of  the  king  should  hold  Pleas  of  the 
Crown.*  The  itinerant  justices  were  thus  left 
as  the  presidents  of  the  county  courts,  the  firm 
bond  between  the  local  tribunals  and  the 
Curia  Regis.2 

We  now  come  to  the  second  great  means  by 
which  the  amalgamation  of  the  courts  was 
brought  about,  —  the  assizes.  These,  it  will 
appear,  were  instituted  largely  through  the 
influence  of  the  landed  man.  Aside  from  the 
fact  that  they  helped  to  draw  local  and  national 
justice  together,  they  have  great  interest  be- 
cause they  developed  into  the  jury  system,  an 
application  of  the  ancient  principle  of  judg- 
ment by  peers  to  a  court  which,  though  in  form 
royal,  was  made  by  the  jury  to  preserve  the 
traditions  of  popular  justice.  The  right  to  trial 
by  jury  is  a  liberty  of  which  Englishmen  are 
justly  proud,  for  it  is  peculiar  to  their  consti- 
tution, and,  more  than  that,  the  strongest  guar- 
anty of  justice.  Blackstone  speaks  of  the  jury 
as  the  "palladium"  of  liberties,'  the  "glory 
of  the  English  law,"  the  one  thing  which  will 
save  the  freedom  of  EngHshmen  from  the  loss 
which  befell  Rome,  Sparta,  and  Carthage.* 

*  Mag.  Cart.  c.  24.         '  Stubbs,  Const.  Hist.  §  163. 
»  4  Bl.  Cam.  350.  *  3  Bl.  Cam.  379. 


82       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

Trial  by  jury  is  not  the  jvdicum  parium  se- 
cured by  Magna  Carta;  *  it  was  not  in  use  in 
1215.  The  assizes,  the  only  existent  institu- 
tions analogous  to  trial  by  jury,  were  protected 
by  separate  clauses.*  The  phrase  of  Magna 
Carta  refers  to  the  general  principle  of  German 
law  which  we  have  found  in  England  expressed 
in  the  county  and  manorial  courts.  Attempts 
have  been  made  to  find  the  origin  of  the  jury 
in  Anglo-Saxon  jurisprudence,  but  its  distin- 
guishing machinery  is  nowhere  apparent  there. 
We  cannot  connect  it  directly  with  the  custom 
of  popular  suit  at  the  local  courts,  for  the  suitors 
were  judges  of  the  law,  not  of  the  facts.  Nor 
do  we  find  its  germ  in  Anglo-Saxon  compurga- 
tion, for  the  compurgator  pledged  his  faith 
to  the  credibility  of  the  litigant  whose  state- 
ments were  in  issue,  while  the  juror  swore  to 
facts  of  his  own  knowledge.'  The  twelve  senior 
thegns  in  the  shiremoot  who  accused  crim- 
inals foreshadow  the  grand  jury  of  presentment, 
not  the  trial  jury.*  The  idea  of  popular  justice 
underlying  trial  by  jury  was   indeed  Anglo- 

*  Mag.  Cart.  c.  39;  1  Palgrave,  Eng.  Cam.  244. 
'  Mag.  CaH.  cc.  18, 19. 

»  1  Palgrave,  Eng.  Com.  249;  Stubbs,  Canst.  Hist.  §  164. 

*  Stubbs,  Canst.  Hist.  §  164. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY        83 

Saxon  and  Germanic,  but  the  machinery  which 
applied  the  old  principle  in  an  entirely  new 
form  came  to  England  with  the  Normans.  This 
machinery  was  the  inquest,  long  used  among 
the  Franks  in  fiscal  business  and  adapted  in 
England  to  judicial  affairs/ 

One  of  the  eariiest,  if  not  the  first,  use  of 
recognition  by  sworn  inquest  in  England  was 
in  1070  when  William  the  Conqueror  gave  the 
people  the  laws  of  Edward  the  Confessor.  The 
king  wished  to  know  what  the  laws  were,  and 
found  out  in  the  way  that  the  Franks  had  of 
getting  information.  He  had  twelve  "noble 
and  wise  EngUshmen  learned  in  the  law"  come 
before  him  from  each  county  and  on  their  oath 
declare  what  were  their  laws  and  customs.' 
But  the  great  inquest  of  the  Conqueror  was 
fiscal,  —  the  Domesday  Survey  of  1085.  A  rate- 
book being  needed  for  the  assessment  of  Dane- 
geld,  William  obtained  it  in  some  such  manner 
as  he  had  discovered  the  laws.  Commissioners 
were  sent  out  with  interrogatories  upon  which 
they  took  the  sworn  testimony  of  the  men  at 

*  1  Poll.  &  Mait.  (2d  ed.)  140,  143;  Thayer,  Preliminary 
Treatise  on  Evidence  at  the  Common  Law,  47, 48. 

'  Roger  de  Hoveden,  ii,  218,  in  Stubbs,  Set.  Chart.  (8th  ed.) 
81. 


84       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

the  shiremoot.  The  magnates  of  the  shire 
spoke  for  the  county  at  large.  The  men  of  each 
hundred  stated  the  rating  of  each  vill  of  the 
hundred,  who  held  land,  how  much  each  held 
and  "of"  whom.  The  township  also  had  its 
sworn  representatives  in  the  priest,  the  reeve, 
and  six  villeins.*  Probably  recognitions  were 
confined  largely  to  fiscal  business  such  as  as- 
sessment until  the  time  of  Henry  II.  We  do, 
indeed,  find  a  few  cases  of  judicial  inquests,^ 
but  such  cases  were  special,  not  regular."  An 
examination  of  the  instances  collected  by  Pal- 
grave*  leads  to  the  conclusion  that  there  was 
no  uniformity  in  the  number  of  jurors  sum- 
moned and  little  resemblance  between  the  cases 
in  the  manner  of  procedure.  The  inquest  was 
not  yet  established  as  a  judicial  institution. 

The  date  of  the  emergence  of  the  inquest,  as 
a  regular  mode  of  justice  and  not  a  special 
favor,  must  be  set  at  the  year  1164,  when  the 
Constitutions  of  Clarendon  were  issued.  While 
these  constitutions  pretend  to  be  a  recording 

*  Maitland,  D.  B.  and  Beyond,  10-12;  2  Palgrave,  Eng. 
Com.  ccccxliv;  Stubbs,  Const.  Hist.  §  126. 

'  Stubbs,  Ccmst.  Hist.  §  128. 
'  Thayer,  Prdim.  Treat.  51-53. 

*  2  Palgrave,  Eng.  Com.  dxxviii,  et  seq. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY       85 

of  ancient  "customs  and  liberties  and  digni- 
ties," they  contain  the  first  statutory  mention 
of  recognition.  More  than  that,  it  is  the  earli- 
est document  of  any  sort  which  refers  to  a  judi- 
cial inquest  as  a  definite  procedure  prescribed 
in  a  certain  class  of  cases.  A  custom  had  doubt- 
less been  growing  up  to  apply  the  inquest  in 
such  scattered  judicial  cases  as  the  king  saw  fit 
to  grant  a  writ  for,  but  nowhere  before  do  we 
hear  of  a  writ  which  might  be  demanded  of 
right.  Here  for  the  first  time  we  see  a  fixed  in- 
stitution. Among  the  provisions  of  the  con- 
stitutions we  find  this:  In  case  of  a  dispute 
between  clerk  and  layman  as  to  whether  a  tene- 
ment was  eleemosina  or  lay  fee,  it  was  to  be 
determined  by  the  recognition  of  twelve  lawful 
men  *  in  the  presence  of  the  justice  of  the  king 
whether  (utrum)  the  tenement  was  of  one  kind 
or  the  other.  If  found  to  be  eleemosynary  the 
plea  was  to  be  taken  to  the  ecclesiastical  court 
for  adjudication,  otherwise  to  the  Curia  Regis.^ 
This  assize  utrum  is  a  landmark  in  the  advance 

*  The  probu3  et  legalis  homo  who  served  as  recognitor  was  a  free- 
man holding  land.  Blackstone  defined  him  as  the  holder  of  free 
land  of  the  value  of  40«.  per  annwn,  qualified  to  serve  on  the 
jury  and  to  vote  for  knights  of  the  shire.  1  Bl.  Com.  406,  407. 

'  Const.  Clar.  c.  9,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  137. 


86       JUDICIAL  REFORMS.   TRIAL  BY  JURY 

toward   concentration   of   local    and   national 
justice. 

It  was  followed  soon  after  by  the  assize  of 
novel  disseisin^  This  provided  that  if  a  person 
were  disseised,  that  is,  dispossessed  of  his  free 
tenement  unjustly  and  without  a  judgment,  he 
should  have  a  royal  writ,  an  assize  (or  "jury") 
should  be  impaneled,  and  if  the  plaintiff  were 
declared  by  the  recognitors  to  have  been  un- 
justly disseised,  he  was  to  be  restored  to  pos- 
session. This  was  a  revolutionary  measure, 
one  of  the  most  important  ever  enacted  in  Eng- 
land. By  it  possession,  as  distinguished  from 
ownership,  was  protected  by  an  exceedingly 
rapid  remedy.  We  will  suppose  that  A  and  B 
both  claimed  title  to  the  same  land.  In  the  de- 
cision of  the  dispute,  according  to  the  old 
method,  the  possessor  would  have  the  advan- 
tage, for  he  would  be  defendant  and  as  such 
would  merely  have  to  swear  that  the  land  was 
his  and  get  oath-helpers  to  swear  that  his  oath 
was  credible.  As  has  been  said  by  Professors 
Pollock  and  Maitland,  not  only  did  the  burden 
of  proof  lie  on  the  plaintiff,  the  benefit  of  the 
proof  was  enjoyed  by  the  defendant.    It  there- 

*  Probably  at  the  council  at  Clarendon  in  1166.    1  Poll.  & 
Mait.  (2d  ed.)  137,  145. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       87 

fore  happened  that  if  A  was  in  possession,  B 
might  turn  him  out  in  order  that  he  might  get 
the  benefit  of  being  defendant.  It  was  to  avoid 
just  such  cases  as  this  that  the  new  assize  gave 
A  a  speedy  return  to  his  normal  advantage 
by  means  of  an  inquest  of  neighbors  capable 
of  declaring  who  had  the  right  to  possession.  Of 
course  the  assize  proved  popular,  and  very 
soon  brought  into  the  king's  court  not  only 
great  men  but  humble  persons  of  small  hold- 
ings. The  poorest  man  found  protection  from 
the  danger  of  feudal  justice,  even  against  the 
king.* 

Ten  years  later  came  a  third  assize,  the  mort 
(Tancestor.  While  the  novel  disseisin  forbade 
a  man,  even  though  the  rightful  owner,  to  turn 
out  the  one  in  actual  possession  without  judg- 
ment, the  mort  d*ancestor  secured  the  posses- 
sion to  the  heir  of  one  who  died  seised  of  more 
than  a  life  interest  against  even  a  person  hav- 
ing a  better  title.  The  latter  must  secure  his 
rights  by  an  appeal  to  law;  forcible  seizure 
could  not  be  allowed.  If  the  claimant  did  take 
the  land,  the  heir  had  his  possessory  action. 
While  this  assize,  like  the  novel  disseisin,  was 
thus  a  declaration  of  the  supremacy  of  law 

*  2  PoU.  &  Mait.  (2d  ed.  )  47;  1  Ibid.  137. 


88        JUDICIAL  REFORMS.   TRIAL  BY  JURY 

over  force,  it  was  also  another  blow  at  feudal 
justice  made  necessary  by  the  fact  that  the  man 
who  seized  the  land  was  usually  the  dead  ten- 
ant's landlord,  who  took  this  unlawful  means 
of  enforcing  some  pretended  seignorial  claims.* 

A  fourth  "petty  assize"  instituted  about 
the  same  time  was  that  of  darrein  presentment. 
If  a  church  were  vacant  and  two  persons  quar- 
reled as  to  the  right  of  presentment,  an  inquest 
of  neighbors  was  held  to  declare  who  presented 
the  last  parson.  Such  possessory  judgment 
having  been  given,  the  last  presenter  could 
dispose  of  the  advowson,  and  his  opponent 
was  left  to  his  proprietary  action,  which  must 
also  be  in  the  king's  court,  and  in  which  the 
defendant  could  put  himself  upon  the  "grand 
assize."  Here  the  royal  justice  absorbed  not 
only  the  local  and  feudal,  but  also  the  ecclesi- 
astical.' "It  is  probable  that  for  a  short  while 
a  few  other  cases  were  met  in  a  similar  fashion; 
but  in  a  little  time  we  have  these  four  and  only 
these  four  petty  assizes."  ' 

The  "grand  assize"  of  Henry  II  completes 

the  list.   While  the  petty  assizes  had  to  do  only 

with  the  right  to  possession,  this  was  resorted 

»  1  PoU.  &  Mait.  (2d  ed.)  147, 148. 

'  Ibid.  148.  '  Ibid.  149. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY       89 

to  as  a  means  of  determining  title.  If  a  pro- 
prietary action  for  land  arose,  the  tenant  or 
defendant  could  have  a  royal  writ  which  gave 
him  two  important  privileges.  First,  his  case 
would  be  removed  from  the  feudal  court,  where 
he  would  with  difficulty  get  justice  even  if  the 
plaintiff  were  not  the  lord.  Second,  he  could 
escape  the  hateful  trial  by  battle  and  have  his 
case  determined  by  an  inquest  of  neighbors 
before  the  king's  justice.  Again  the  king's  court 
cut  into  feudal  jurisdiction.*  Thus  the  first, 
and  for  some  time  the  only  clear,  instances  of 
judicial  inquest  which  a  party  could  claim  as 
of  right,  related  to  suits  of  land  or  some  thing 
growing  out  of  land,  for  the  advowson  was  a 
right  connected  with  real  property. 

It  must  not  be  thought  that  the  assize  was 
precisely  like  our  modem  jury ;  the  fact  is 
that  it  was  in  some  respects  strikingly  different. 
The  recognitors  were  twelve  men  who  knew 
the  facts  of  the  case  and  who  were  on  their  oath 
to  declare  which  party  was  in  the  right.  If  in 
the  panel  any  were  found  who  did  not  know 
the  "truth  of  the  thing,"  they  were  rejected 
and  others  called  until  twelve  men  were  found 
who  were  cognizant  of  the  facts.  If  the  jury 
*  1  PoU.  &  Mait.  (2d  ed.)  147. 


90       JUDICIAL  REFORMS.   TRIAL  BY  JURY 

disagreed,  talesmen  were  drawn  until  at  least 
twelve  were  for  one  party.  ^  Thus  the  jurors 
were  witnesses,  not  judges  of  the  facts  upon 
the  testimony  of  others. 

Special  writs  for  recognitions  in  cases  other 
than  the  assizes  are  found  running  into  the 
reign  of  Henry  III,*  but  they  are  evidently  ex- 
pressive of  royal  favor  rather  than  of  regular 
procedure.  The  growth  of  the  use  of  the  jury 
in  civil  cases  was  rapidly  extended,  however, 
by  consent  of  the  parties,  who  recognized  the 
many  advantages  of  the  system,  and  by  the 
year  1275  it  was  the  common  law  method  of 
trial  where  no  other  was  fixed." 

Jury  trial  in  criminal  law  came  about  in  a 
somewhat  different  way.  The  Assize  of  Claren- 
don provided  that  the  royal  justices  and  the 
sheriffs  should  have  inquisition  made  in  each 
county  upon  the  oath  of  twelve  lawful  men  of  the 
hundred  and  four  legal  men  of  the  town  as  to 
who  were  reputed  guilty  of  murder,  robbery,  and 
larceny,  and  of  receiving  such  criminals.*    Here 

*  Glanvill,  Tradatua  de  Legibus  d  Consuetudinibus  Angliae, 
lib.  ii,  c.  17,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  162. 

'  2  Palgrave,  Eng.  Com.  clxxviii,  et  seq. 
■  Thayer,  Prdim.  Treat.  59,  60. 

*  Assize  of  Clarendon,  1,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  143. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       91 

we  seem  to  have  the  successors  of  the  twelve 
senior  thegns  of  the  hundred  accusing  crim- 
inals in  the  shiremoot,  the  development  of  the 
jury  of  accusers  of  the  neighborhood  ordered 
to  be  used  in  ecclesiastical  courts  by  the  Con- 
stitutions of  Clarendon,*  and  the  forerunner 
of  our  jury  of  presentment.  If  any  were  charged 
with  crime,  they  were  put  to  the  ordeal  of  water.' 
But  passing  through  the  ordeal  was  not  a  full 
acquittal;  it  merely  let  the  prisoner  off  with  his 
life  provided  he  left  the  kingdom  within  eight 
days."  This  Assize  of  Clarendon  thus  did  away 
with  compurgation  in  criminal  cases.  When 
ordeal  was  abolished  about  1218,  in  conse- 
quence of  the  decree  of  the  Lateran  Council 
of  1215,*  the  prisoner  was  then  left  with  no 
appeal  from  the  presentment  of  the  assize. 
Trial  by  combat  could  be  had  only  when  there 
was  a  prosecutor  to  demand  it,  and  such  ap- 
peals were  becoming  less  frequent.  Hence  the 
recognition  was  borrowed  from  the  civil  side 
of  the  law  in  order  to  meet  the  requirement 
for  a  trial  of  the  facts  in  criminal  cases." 

*  Const.  Clar.  6,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  137. 

*  Assize  of  Clar.  2. 

'  Ibid.  14.    The  Assize  of  Northampton,  c.  1,  made  similar 
provisions,  applicable  also  to  forgery  and  arson. 

*  Thayer,  Prelim.  Treat.  37. 

^  Ibid.  41;  1  Palgrave,  Eng.  Cam.  266,  267. 


92       JUDICIAL  REFORMS.  TRIAL  BY  JURY 

The  development  of  the  jury,  thus  used  in 
both  criminal  and  civil  cases,  from  a  body  of 
witnesses  declaring  the  facts  of  their  own  know- 
ledge to  the  modem  jury  judging  the  testimony 
of  others,  requires  a  few  words.  "As  it  became 
difficult  to  find  juries  personally  well  informed 
as  to  the  point  at  issue,  the  jurors  summoned 
were  allowed  first  to  add  to  their  number  per- 
sons who  possessed  the  requisite  knowledge, 
under  the  title  of  afforcement.*  After  this  pro- 
ceeding had  been  some  time  in  use,  the  afforc- 
ing  jurors  were  separated  from  the  uninformed 
jurors  and  reUeved  them  altogether  from  their 
character  of  witnesses.  The  verdict  of  the  jury 
no  longer  represented  their  previous  knowledge 
of  the  case,  but  the  result  of  the  evidence  af- 
forded by  the  witnesses  of  the  fact;  and  they 
became  accordingly  judges  of  the  fact,  the  law 
being  declared  by  the  presiding  officer  acting 
in  the  king's  name." »  Or  in  another  way  we 
may  find  the  jurors  becoming  judges  of  the 
facts.  In  the  case  of  novel  disseisin,  for  exam- 
ple, the  question  in  its  simple  form  would  be. 
Was  the  plaintiff  seised  ?   The  assize  could  an- 

*  Cf.  Glanrill,  De  Leg.  Ang.  lib.  ii,  c.  17,  in  Stubbs,  Sd. 
ChaH.  (8th  ed.)  162. 
'  Stubbs,  Const.  HiH.  §  164. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       93 

swer  Yes  or  No,  and  judgment  would  be  given. 
But  sometimes  the  defendant  would  plead  some 
exceptioy  some  special  plea  alleging  a  reason 
why  the  question  should  not  be  put;  and  this 
grew  more  frequent  as  time  went  on.  The  jus- 
tices also  began  to  require  the  plaintiff  to  set 
out  his  case,  and  this  fact  and  the  special  pleas 
often  raised  side  issues  which  necessitated  the 
conversion  of  the  assize  into  a  jury.  The  ver- 
dict of  the  twelve  men  which  had  been  sum- 
moned, or  perhaps  of  another  twelve,  was  taken 
about  the  new  question  which  had  arisen  from 
the  pleadings.* 

Thus  trial  by  jury  had  its  formal  and  definite 
origin  in  the  assizes,  and  a  very  striking  fact 
for  us  is  that  these  assizes  at  the  first  had  to 
do  with  land,  and  land  only.  Here  we  find  the 
landed  man  in  contact  with  an  important  move- 
ment which  led  immediately  to  the  building 
up  of  the  judicial  system  and  ultimately  to 
that  cardinal  feature  of  it,  the  highly  prized 
jury. 

The  fact  that  an  extension  of  the  inquest 
took  place  in  Normandy  at  about  the  time  of 
the  introduction  of  the  assizes  into  England 

*  2  Poll.  &  Mait.  (2d  ed.)  48.  For  a  fuller  treatment,  see  Ibid. 
612-628. 


94        JUDICIAL  REFORMS.   TRIAL  BY  JURY 

has  suggested  the  thought  that  Henry  II  may 
have  evolved  the  reform  in  his  unaided  mind.^ 
This,  however,  is  hardly  a  necessary  conclu- 
sion. Assuming  Henry  to  have  been  (as  he  is 
always  represented)  an  unusually  wise  legis- 
lator, he  would  hardly  impose  a  new  method 
of  procedure  where  there  was  no  need  of  it. 
Where  there  was  need,  there  would  be  some 
sort  of  demand  from  those  who  felt  the  need. 
Glanvill  spoke  of  "magna  assisa,  regale  quod- 
dam  beneficium,  dementia  principis  de  con- 
silio  procerum  populis  indultum."  ^  The  writer 
was  Henry's  chief  justice  and  spoke  of  his 
own  knowledge.  When  he  called  the  grand 
assize  *'  a  regal  benefit,  a  favour  granted  by  the 
clemency  of  the  prince,"  what  did  he  mean? 
In  a  certain  sense  everything  coming  from  the 
king's  hand  was  a  favor.  As  the  chief  legislator 
of  the  nation,  he  bent  to  his  subjects;  but  the 
grant  of  a  favor  could  not  be  made  by  a  sov- 
ereign ignorant  of  the  needs  of  his  beneficia- 
ries. It  can  hardly  be  doubted  that  even  in 
times  of  the  strongest  prerogative,  the  subjects 
found  some  respectful  means  of  making  those 

*  1  Palgrave,  Eng.  Com.  243. 

'  Glanvill,  De  Leg.  Aug.  lib.  ii,  c.  7,  in  Stubbs,  Sel.  Chart. 
(8th  ed.)  161. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY        95 

needs  known,  so  that  the  king  did  not  always 
bend  of  his  own  motion.  When  the  king  had 
something  to  ask  of  the  barons,  he  often  granted 
favors  which  were  not  voluntary.  The  counsel 
of  the  barons,  in  theory  always  necessary  to 
legislation,  was  thus  in  practice  sometimes 
more  than  mere  advice.  GlanvilFs  words  are 
modified  by  the  usual  phrase,  "with  the  con- 
sent of  the  nobles."  Whether  this  consent  was 
merely  formal,  or  whether  it  was  advice  of  an 
urgent  nature,  we  may  unfortunately  not  know, 
as  the  circumstances  attending  the  granting  of 
the  grand  assize  have  never  been  ascertained. 
We  may,  however,  with  some  safety  guess  that 
it  was  not  the  former. 

Of  the  conditions  attending  the  introduction 
of  the  assize  utrum  we  know  considerable.  The 
preamble  of  the  Constitutions  of  Clarendon 
shows  that  they  grew  out  of  disputes  between 
the  clergy  upon  the  one  hand  and  the  king's 
justices  and  the  barons  of  the  realm  upon  the 
other. ^    The  bone  of  contention  was  the  juris- 

^  "Propter  dissensiones  et  discordias  quae  emerserant  inter 
clerum  et  Justitias  domini  regis  et  barones  regni  de  consuetu- 
dinibus  et  dignitatibus,  facta  est  ista  recognitio  coram  archi- 
episcopis  et  episcopis  et  clero  et  comitibus  et  baronibus  et  pro- 
ceribus  regni."  Stubbs,  Sd.  Chart.  (8th  ed.)  137. 


96        JUDICIAL  REFORMS.  TRIAL  BY  JURY 

diction  of  the  temporal  courts  over  clerics. 
The  result,  so  far  as  we  are  presently  concerned, 
was  the  assize  utrum  by  which  certain  causes 
as  to  land  between  the  clergy  and  the  laity  were 
to  be  settled  by  the  oath  of  twelve  lawful  men.* 
The  preamble  further  tells  us  that  the  council 
made  an  inquest  of  the  customs  and  liberties 
of  the  times  of  Henry  I,  and  that  the  Consti- 
tutions are  a  partial  recital  of  the  same,  but  it 
has  already  been  noted  that  we  cannot  trace 
the  use  of  an  assize  as  an  estabUshed  and  pre- 
scribed mode  of  procedure  beyond  these  very 
Constitutions.  In  view  of  this  fact  and  of  the 
quarrel  which  led  to  the  council,  is  it  not  prac- 
tically certain  that  we  find  here  a  sort  of  treaty 
of  peace  which  gave  the  barons  a  right  which, 
while  not  without  various  disconnected  pre- 
cedents, yet  as  an  absolute  right  was  novel? 
The  barons  may  well  be  beHeved  to  have  forced 
this  result  in  protection  of  their  landed  inter- 
ests. 

In  the  absence  of  any  knowledge  as  to  the 
exact  date  of  the  grand  assize,  we  may  not  know 
whether  that  great  boon  was  copied  after  the 
assize  utrum,  but  the  latter  may  perhaps  be 
the  eariier  and  the  pattern.    The  darrein  pre- 

»  Cap.  9. 


JUDICIAL  REFORMS.  TRIAL  BY  JURY       97 

sentment  was  undoubtedly  of  later  origin.  The 
Constitutions  of  Clarendon  do  indeed  provide 
that  questions  as  to  advowsons  shall  be  decided 
in  the  king's  court,*  but  the  absence  of  any 
reference  to  an  assize  makes  it  probable  that 
such  process  was  not  used  in  this  connection 
until  later.'  The  two  remaining  assizes,  novel 
disseisin  (1166)  and  Tnort  d^ ancestor  (1176), 
were  obviously  of  later  growth  and  were  very 
likely  based  largely  upon  the  analogy  of  the 
assize  utrum. 

We  may  make  ample  allowance  for  the  in- 
fluence of  the  constructive  legal  mind  which 
Henry  undoubtedly  possessed  and  still  have 
room  for  the  influence  of  the  landed  man  upon 
the  assizes.  Probably  all  were  issued  in  coun- 
cil. That  this  was  true  of  the  grand  and  utrum 
we  have  already  seen.  As  to  darrein  present- 
ment we  have  no  knowledge.  Novel  disseisin 
is  assigned  by  Pollock  and  Maitland  to  the 
council  of  Clarendon  in  1166,'  and  Tnort  d' an- 
cestor is  generally  supposed  to  have  had  its 

*  Const,  of  Clar.  1,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  137. 

'  Compare  1  Poll.  &  Mait.  (2d  ed.)  148,  showing  that  real 
occasion  for  a  possessory  action  in  adrowsons  did  not  arise  until 
1179. 

»  1  PoU.  &  Mait.  (ied  ed.)  145. 


98       JUDICIAL  REFORMS.   TRIAL  BY  JURY 

origin  in  the  fourth  clause  of  the  Assize  of 
Northampton.  That  the  barons  present  in  all 
these  Councils  would  not  be  satisfied  with  mere 
perfunctory  consent  to  measures  of  such  value 
to  them  as  landowners  seems  certain.  Such 
reforms  would  scarcely  be  imposed  upon  un- 
willing advisers;  on  the  other  hand,  the  barons 
would  the  rather  ask  for  them.  What  their 
temper  in  the  matter  was  may  be  illustrated  by 
their  demand  forty  or  fifty  years  later  for  the 
protection  of  the  assizes.*  That,  on  the  other 
hand,  they  were  wrung  from  an  unwilling  mon- 
arch there  is  no  warrant  for  assuming.  Un- 
doubtedly Henry  was  very  ready  to  use  this 
method  of  strengthening  the  royal  justice.  Just 
the  proportion  which  the  two  influences  bore 
to  each  other  will  never  be  ascertained.  It  is 
sufficient  for  our  present  inquiry  that  we  have 
clear  evidence  that  the  landed  man  has  here 
left  his  impress  upon  civil  liberty. 

K  we  were  to  sum  up  the  chief  elements  which 
joined  to  build  up  this  central  system  of  judi- 
cature reaching  down  to  the  local  by  means  of 
itinerant  justices  and  the  embryonic  jury,  we 
should  find  them  three  in  number.    First,  there 

*  Mag.  CaH.  cc.  18, 19. 


JUDICIAL  REFORMS.   TRIAL  BY  JURY       99 

was  the  need  of  the  king  by  commissions  and 
inquests  to  see  that  the  landed  man,  in  mat- 
ters of  taxation,  was  doing  right  to  the  sov- 
ereign. Second,  there  was  the  need  of  the  landed 
man  for  a  better  means  of  securing  his  property 
rights  against  his  neighbor  and  the  king,  a  need 
which  found  expression  in  demand  for  relief. 
Third,  there  was  willingness  on  the  part  of  the 
king  to  grant  reform  (1)  because  of  the  need 
he  had  of  the  financial  support  of  the  landed 
man,  (2)  because  of  his  desire  to  overcome  the 
remnants  of  justice  in  the  hands  of  the  old  Nor- 
man feudatories  who  were  now  passing.  In 
every  one  of  these  elements  we  find  the  landed 
man  a  factor  of  importance.  Thus  at  every 
point  of  the  marvelous  development  of  na- 
tional justice  which  not  only  secured  right  to 
Englishmen,  but  which  also  was  of  uncount- 
able value  in  unifying  the  people  and  preparing 
them  for  self-government,  the  landed  man  left 
his  impress. 


THE    STRUGGLE    FOE    MAGNA    CARTA 

The  progress  of  liberty  seems  ever  inseparable 
from  the  subject  of  taxation.  Just  now  we  have 
traced  the  fiscal  origin  of  one  of  our  free  in- 
stitutions, and  on  several  occasions  we  have 
seen  the  subject  winning  concessions  from  the 
sovereign  in  return  for  financial  support  or 
personal  service.  Frequently  liberty  was  won 
by  bargaining  with  the  king.  In  increasing  num- 
ber we  find  the  boroughs  and  cities  getting 
local  government  in  consideration  of  grants  of 
taxes.  But  the  establishment  of  freedom-giv- 
ing institutions  in  order  that  the  king  might 
reach  all  taxable  property,  and  the  peaceful 
method  of  purchase,  were  not  the  only  modes  of 
advance.  The  time  came  when  these  could  not 
prevail  with  sufficient  speed  against  a  tyran- 
nous king,  and  armed  hostility  became  the  ex- 
pression of  resistance  to  fiscal  burdens  and 
the  efficient  means  of  advancing  the  liberties 
of  the  nation. 


THE  STRUGGLE  FOR  MAGNA  CARTA      101 

The  Great  Council  during  the  days  of  Henry 
II  grew  in  prominence;  perhaps  its  power  in- 
creased sUghtly  withal;  but  as  a  practical  check 
upon  the  king,  it  exerted  little  of  the  influence  of 
a  truly  legislative  body.  When  it  opposed  itself 
to  the  prerogative,  it  was  rather  as  a  loose  body 
of  landholders  who  must  be  propitiated  than 
as  a  legislature  with  any  initiative,  or  even  as 
an  advisory  council  with  any  esprit  de  corps. 
For  all  this,  the  Great  Council  contained  the 
germ  of  a  legislative  body,  since  formal  con- 
sent is  not  infinitely  distant  from  timid  demand, 
which  is  in  turn  but  a  longish  step  removed 
from  initiative.  The  barons  may  not  very  early 
have  found  it  out,  but  their  individual  interests 
in  taxation  were  really  common.  When  they 
realized  this  fact  more  fully,  they  would  be 
readier  to  take  the  steps,  but  it  must  at  first 
be  slowly,  feeling  the  way  like  blind  men. 
Meanwhile  the  influence  of  the  council  would 
be,  not  unimportant,  but  unorganized. 

Henry  II  gave  his  Great  Council  many  op- 
portunities to  share  in  legislation.  Even  though 
the  share  were  formal,  this  of  itself  would  tend 
to  give  the  body  standing.  During  the  king's 
presence  in  England,  councils  were  frequent. 


102      THE  STRUGGLE  FOR  MAGNA  CARTA 

and  many  an  important  enactment  was  pub- 
lished in  them.  Very  hopeful  indeed  were  cer- 
tain traces  of  a  growing  deliberation,  indicating 
that  the  opinions  of  the  counselors  were  listened 
to  even  if  not  acted  upon  by  the  king.  Henry 
talked  over  the  condition  of  the  realm  with  his 
council  in  1154;  *  he  called  together  the  bishops 
in  1163  to  discuss  the  criminous  clerks,  and  the 
talk  was  protracted  pretty  persistently  into  the 
evening;  2  in  1184  he  asked  for  and  followed 
the  advice  of  the  bishops  in  an  ecclesiastical 
matter;'  similarly  he  assembled  the  Great 
Council  at  London  in  1176  and  sought  and 
received  their  counsel.*  But  how  little  after 
all  was  the  real  power  of  the  council  against 
a  king  who  insisted  on  his  own  way  may  be  seen 
from  reference  to  the  Great  Council  at  Not- 
tingham of  1194.  The  chronicler  graces  this 
with  the  name  of  "colloquium,"  which  surely 
indicates  deliberation,  yet  how  supreme  was 
the  king's  will  is  shown  by  the  acts  of  the  four 
days'  session.  Richard  I  deposed  some  sherijffs 
and  sold  their  offices;  he  demanded  judgment 

*  Gervas,  c.  1377,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  128. 
»  Gervaa,  c.  1384,  in  Ibid.  129. 

'  Benedict,  i,  311,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  133. 

*  Benedict,  i,  116,  in  Ibid.  130. 


THE  STRUGGLE  FOR  MAGNA  CARTA      103 

against  John,  and  the  council  summoned  him 
to  answer;  he  determined  (constituit)  that  2s. 
be  given  him  from  each  carucate  in  England; 
he  took  (praecepit)  a  scutage;  he  exacted  (exe- 
git)  the  wool  of  the  Cistercian  monks;  he  heard 
charges  of  treason.^ 

On  one  occasion  the  council  stepped  out  of 
bounds.  Longchamp,  the  justiciar  of  Richard  I, 
fell  into  disfavor  with  the  bishops  and  barons 
because  of  his  exactions.  A  Great  Council, 
which  could  legally  be  summoned  only  by  the 
king  or  justiciar,  was  assembled  by  John,  Long- 
champ  was  deposed,  and  the  Archbishop  of 
Rouen  was  elected  justiciar.  While  even  a  coun- 
cil properly  summoned  had  no  right  to  depose 
or  appoint  a  royal  ojQScer,  the  offense  was  the 
less  because  the  new  justiciar  presented  to  the 
council  an  appointment  by  Richard.  This 
incident  must  be  viewed  as  entirely  exceptional 
and  not  as  representing  any  permanent  ad- 
vance in  the  power  of  the  Great  Council.  It  is 
valuable,  however,  as  showing  that  the  barons 
had  begun  faintly  to  feel  that  they  had  a  claim 
to  a  larger  share  in  government.' 

*  Roger  de  Hoveden,  iii,  240,  in  Stubbs,  Sd.  Chart.  (8th  ed.) 
253. 

2  Stubbs,  Ccmst.  Hist.  §  149. 


104      THE  STRUGGLE  FOR  MAGNA  CARTA 

Perhaps  the  most  hopeful  signs  of  the  times 
were  the  first  instances  of  open  resistance  to 
the  king  in  council.  At  a  council  at  Woodstock 
in  1163  Henry  II  proposed  to  add  to  the  royal 
revenue  the  2s.  which  every  hide  of  land  annually 
paid  to  the  sheriff  for  his  administrative  services. 
Becket  declared  in  the  face  of  the  king  that  it 
would  not  be  given  as  royal  revenue,  although 
the  sheriff  should  not  lack  for  it.  Henry  an- 
swered angrily,  but  the  archbishop  again  in- 
sisted that,  as  for  the  church,  it  should  not  be 
done.  No  very  important  result  issued  from 
this  other  than  the  quarrel  between  Henry  and 
Becket,  but  it  is  interesting  as  the  first  reported 
case  of  opposition  to  the  king's  will  in  taxa- 
tion.* 

Again  in  1198  we  meet  with  a  similar  case 
at  the  Great  Council  convened  by  the  justiciar. 
Archbishop  Hubert.  The  occasion  was  a  de- 
mand for  an  unprecedented  scutage  for  the 
war  in  Normandy.  The  Bishops  of  Lincoln 
and  Salisbury  fiatly  refused  to  pay  the  tax  upon 
their  lands,  and  the  justiciar  was  so  over- 
whelmed   with    resistance    that    he    withdrew 


*  Stubbs,  Sd.  Chart.  (8th  ed.)  129;  Stubbs,  Const.  Hist. 
§  1S9. 


THE  STRUGGLE  FOR  MAGNA  CARTA      105 

his  demand  and  resigned  his  office.^  It  is  sig- 
nificant that  the  first  two  instances  of  constitu- 
tional opposition  to  royal  will  were  connected 
with  land  taxes  and  that  the  second,  at  least, 
was  entirely  successful. 

Hopeful  as  was  this  firm  opposition  to  taxa- 
tion, it  was  undoubtedly  made  because  the 
objectors  were  personally  unwilling  to  pay,  not 
because  as  advisers  they  deemed  the  taxes  un- 
wise, much  less  because  as  legislators  they  were 
caring  for  the  interests  of  others  whom  they 
represented.  So  too,  although  objection  indi- 
cates deUberation,  we  must  not  think  that  the 
Great  Council  was  yet  able  to  arrive  at  a  con- 
clusion and  declare  it  with  any  authority.  The 
authority  was  still  the  king's;  the  only  thing 
for  the  council  to  do  was  to  agree  with  the  royal 
will  or  else  block  it  by  individual  refusals  of 
the  greater  landowners  to  submit  to  a  tax.  In 
judicial  reforms,  the  demand  of  the  landowners 
not  running  contrary  to  the  royal  will,  influence 
by  advice,  as  we  have  seen,  was  possible.  In 
matters  of  taxation,  however,  the  minds  of  king 
and  baron  could  rarely  be  the  same.   It  is  some 

*■  Roger  de  Hoveden,  iv,  40,  and  Vita  Magna  S.  Hugonis, 
248,  in  Stubbs,  Sd.  ChaH.  (8th  ed.)  955;  Stubbs,  Const.  Hist. 
§  150. 


106      THE  STRUGGLE  FOR  MAGNA  CARTA 

indication  of  how  much  the  sovereign  had  his 
own  way  that,  in  spite  of  the  steadily  increas- 
ing fiscal  burdens,  there  are  on  record  only  two 
cases  of  opposition  to  taxation  in  the  Great 
Council. 

It  will  be  well  for  us  to  see  how  great  was  the 
cause  for  the  barons  to  take  an  interest  in  the 
granting  of  taxes  and  to  oppose  the  king  when 
they  dared,  for,  as  has  already  been  more  than 
once  said,  it  was  in  their  fiscal  grievances  that 
the  landowners  found  their  strength.  Indirect 
taxation,  such  as  customs,  had  not  yet  become 
important.  The  general  taxation  of  the  coun- 
try was  direct,  and  its  early  incidence,  like  that 
of  feudal  imposts,  was  upon  the  land.  Per- 
sonal property  was  first  made  to  contribute  to 
the  support  of  the  nation  in  1181,  when  the 
Assize  of  Arms  required  the  possessor  of  chat- 
tels or  an  income  of  certain  values  to  have  cor- 
responding military  equipments.  Thus  those 
who  did  not  owe  knight  service  were  enrolled 
in  the  militia,  and  the  old  fyrd,  or  host  of  the 
people  in  arms,  was  revived.* 

The  first  real  personal  property  tax  was  the 
Saladin  Tithe  of  1188,  a  levy  of  one  tenth  of 
the  annual  value  of  movables  and  rents  for  use 

»  Stubbs,  Sd.  Chart.  (8th  ed^  153. 


THE  STRUGGLE  FOR  MAGNA  CARTA      107 

in  the  Crusade.*  At  several  other  times  be- 
fore Magna  Carta  similar  taxes  were  gathered :  a 
fourth  for  Richard's  ransom  in  1193;  ^  a  forti- 
eth for  the  Crusade  in  1201 ;  ^  a  seventh  from 
the  barons  in  1203,  exacted  for  not  serving  John 
in  Normandy;*  in  1207,  a  thirteenth  from  the 
whole  country.  In  the  last  instance,  the  king 
had  some  difficulty.  At  a  first  council  at  Lon- 
don, he  proposed  to  levy  upon  the  clergy,  but 
met  with  opposition,  and  had  to  delay  until  a 
later  council  at  Oxford,  where  the  same  de- 
mand received  such  resistance  from  the  Arch- 
bishops of  Canterbury  and  York  that  the  king 
decided  to  distribute  the  burden  of  the  tax 
among  all  the  holders  of  personal  property, 
lay  and  cleric.^  The  Archbishop  of  York  paid 
for  his  little  denial  of  prerogative  by  being 
obliged  to  leave  the  country.  Here  we  have 
another  illustration  of  the  fact  that  opposi- 
tion to  taxation  in  council  was  personal,  for 
the  clergy  lightened  their  burdens  only  by  forc- 
ing the  king  to  shift  a  portion  of  them  to  other 

*  Stubbs,  Set.  ChaH.  (8th  ed.)  159. 

^  Roger  de  Hoveden,  iii,  210,  in  Ibid.  252. 
"  Stubbs,  Const.  Hist.  §  151. 

*  Matthew  Paris,  209,  in  Sd.  ChaH.  272. 

^  Annals  of  Waverley,  258,  and  Matthew  Paris,  221,  in  Ibid. 
273. 


108      THE  STRUGGLE  FOR  MAGNA  CARTA 

taxpayers,  some  of  whom  were  not  so  well  able 
to  resist  it.  That  the  necessity  of  consent  to 
taxation  was  not  recognized  is  shown  by  the 
fate  of  the  archbishop.  The  personal  property 
taxes  before  Magna  Carta  were  few  and  were 
taken  only  upon  special  occasions,  and  cannot 
be  said  to  have  been  established  as  part  of  the 
regular  fiscal  system.  But  the  very  fact  of 
their  newness  and  irregularity  early  caused 
opposition  to  them  and  added  to  the  grievances 
which  were  accumulating  to  force  the  people  to 
make  stem  demands  upon  the  king.  Meanwhile 
the  burden  of  land  taxes  of  unprecedented 
severity  was  working  in  an  even  greater  meas- 
ure to  the  same  end. 

The  hated  Danegeld  was  abolished  in  1163, 
only  to  be  revived  under  the  different  name 
of  carucage,  levied  upon  new  units  of  land  of 
one  hundred  acres  each,  called  carucates,  in- 
stead of  upon  the  old  hide.*  This  tax  affected 
all  landowners,  except  those  upon  demense 
lands  of  the  crown  and  in  the  towns,  where 
tallage  was  collected  upon  the  land,  and  pos- 
sibly upon  other  property.  The  carucage, 
originally  two  shillings  upon  a  carucate,  as  in 

*  Variously  estimated  at  thirty  and  one  hundred  and  twenty 
acres. 


THE  STRUGGLE  FOR  MAGNA  CARTA      109 

the  case  of  Danegeld,  was  raised  by  Richard  I  in 
1198  to  five  shillings  and  by  John  fixed  at  three.* 
The  primary  feudal  incident  was  military 
service.  At  an  early  date  in  the  Norman  pe- 
riod, it  began  to  be  established  that  the  feudal 
tenant  of  land  of  the  annual  value  of  perhaps 
twenty  pounds  (which  was  called  a  knight's 
fee)  was  to  be  liable  to  furnish  a  fully  armed 
horseman  to  serve  at  his  own  expense  for  forty 
days  in  the  year.'  Almost  all  the  tenants-in- 
chief  of  the  king  held  by  this  mihtary  service. 
The  great  baron  would  be  answerable  for  a 
number  of  knights,  varying  with  his  estate, 
but  generally  some  multiple  of  five,  and  rarely 
perhaps  exceeding  sixty.'  The  tenant-in-chief 
who  held  by  the  service  of  fifty  knights  was 
bound  to  appear  in  person  with  forty-nine  other 
knights.  If  he  was  disabled,  he  might  send  a 
substitute  for  himself,  as  could  also  women 
and  ecclesiastics.  The  baron,  whom  we  will 
call  -4,  might  hire  these  other  knights,  or  he 
might  have  enfeoffed  with  his  land  forty-nine 
sub-tenants,  each  of  whom  held  by  the  service 
of  one  knight  and  must  follow  in  person.    Pos- 

*  Stubbs,  Cmst.  Hist.  §  161. 

2  Ibid.  §§  96, 133. 

'  1  Poll.  &  Mait.  (2d  ed.)  254-259. 


110      THE  STRUGGLE  FOR  MAGNA  CARTA 

sibly  he  had  enfeoffed  a  larger  number,  who 
thus  owed  fractional  service. 

Take  for  illustration  the  simpler  case  where 
B  held  a  particular  portion  of  land  of  A  by  the 
service  of  one  knight.  The  duty  of  military 
service  B  owed  to  the  mesne  lord  Ay  and  to 
him  alone;  he  had  no  tenurial  duty  to  the  king. 
To  be  sure  the  king  required  his  oath  of  fealty, 
but  that  was  personal,  not  tenurial.  Yet  the 
king  had  a  practical  hold  upon  B  because  every 
part  of  ^'s  land,  including  B*s  tenement,  was 
liable  for  ^'s  service  to  the  king.  Hence  if  A 
did  not  furnish  his  fifty  knights  the  king  could 
distrain  B*s  tenement  for  the  whole  fifty.  In 
that  event,  however,  A  must  acquit  B  for  the 
surplus  service.  The  primary  duty  to  the  king 
was  A*s;  B  was  bound  by  tenure  only  to  A. 
But  B  was  liable  to  serve  A  only  in  the  king's 
army,  and  need  not  follow  in  the  baron's  pri- 
vate quarrel,  which  shows  how  the  English 
system  had  departed  from  pure  feudaUsm. 
Yet  the  fact  remained  that  A  was  the  one  to 
whom  the  king  must  look  for  the  military  sup- 
port of  fifty  knights,  whom  A^  not  the  king, 
summoned,  and  who  went  to  battle  under  ^'s 
banner.* 

*  1  PoU.  &  Mait.  (2d  ed.)  260-264. 


THE  STRUGGLE  FOR  MAGNA  CARTA      111 

Under  such  a  system,  the  position  of  the  baron 
was  one  of  importance.  His  tenants  might  in- 
deed, in  the  last  analysis,  bear  the  burden  of 
military  service,  but  it  was  to  him  that  the  king 
must  look  for  the  collection  and  organization 
of  a  considerable  band  of  fighters.  Because  of 
the  value  of  his  support,  he  was  of  all  subjects 
the  best  qualified  to  resist  excessive  demands 
of  the  king.  But  the  smaller  the  holding  of  the 
baron,  the  less  his  importance  to  the  king  and 
the  less  potentiality  of  resistance  to  royal  will. 
Possibly  this  accounts  for  the  fact  that  the 
smaller  tenants-in-chief,  although  bound  to 
the  king  by  the  same  personal  and  tenurial  re- 
lations as  were  the  greater,  were  not  called  upon 
by  the  king  to  give  a  formal  consent  to  his  acts 
in  the  Great  Council. 

The  difficulties  of  getting  together  so  ill- 
organized  a  force  proved  a  bar  to  its  efficiency 
and  turned  military  service  into  a  system  of 
land  taxation.  Even  before  the  time  of  Henry  II, 
sub-infeudation  had  brought  about  a  condition 
where  tenants  of  the  mesne  lord  held  fractional 
parts  of  knight's  fees.  This  meant  that  in  some 
cases,  for  example,  three  tenants  must  furnish 
two  knights  or  many  tenants  must  furnish  one. 


112      THE  STRUGGLE  FOR  MAGNA  CARTA 

These  tenants  would  naturally  come  in  time 
to  discharge  their  liability  by  a  cash  payment 
to  the  lord.  The  king  also  found  it  more  con- 
venient to  depend  upon  a  mercenary  army  than 
upon  the  rather  unknown  quantity  of  a  body 
of  knights  answerable  for  only  a  brief  service, 
hence  we  find  Henry  II  in  1159  commuting 
the  personal  attendance  of  the  tenants-in-chief 
and  their  followers  for  a  money  consideration, 
or  scutage,  of  two  marks  for  each  knight.* 

Yet  tenants-in-chief  did  not  seemingly  have 
the  right  to  choose  between  actual  service  and 
the  payment  of  a  fixed  scutage.  Theoretically 
they  must  serve,  and  if  they  failed  to  do  so  must 
pay  the  king  a  fine  as  the  purchase  of  pardon, 
and  this  fine  might  be  arbitrarily  fixed  after  the 
fact  at  a  higher  rate  than  the  established  scutage. 
As  a  royal  favor  the  baron  might  at  times  get 
a  writ  de  scutagio  habendo,  ordering  the  sheriff 
to  collect  the  scutage  from  the  tenants  for  the 
king's  use,  or  perhaps  now  and  then  a  similar 
writ  would  allow  the  baron  to  collect  from  his 
tenants  the  fine  he  had  paid.  The  sub-tenants 
seem  to  have  been  the  only  ones  aside  from  the 
king  to  get  any  immediate  benefit  from  the  in- 
troduction of  scutage,  for  they  apparently  were 

»  1  PoU.  &  Mait.  (2d  ed.)  267. 


THE  STRUGGLE  FOR  MAGNA  CARTA      113 

very  early  able  to  claim  the  right  to  pay  the  es- 
tablished rate  of  scutage  instead  of  serving.  The 
presence  of  so  many  fractional  fees  among  them 
was  a  chief  cause  of  this.  If  they  had  in  the  old 
days  refused  service,  the  lord  could  have  de- 
clared their  tenements  forfeited,  but  with  the 
decline  of  the  feudal  courts  this  passed,  and  the 
king's  court  afforded  the  lord  no  such  remedy. 
Thus  the  claim  of  the  sub-tenant  to  the  right 
to  pay  instead  of  serving  was  protected,  and 
his  military  duty  became  a  liabiHty  merely  to  pay 
the  fixed  tax  represented  by  scutage.  This  tax 
was  anti-feudal;  it  was  royal  and  national.  The 
sheriff  usually  collected  it  for  the  immediate  use 
of  the  crown.  Indeed  the  grants  of  scutage  by 
the  barons  in  the  time  of  Henry  III  were  often 
merely  permissions  to  collect  from  the  under- 
tenants dues  which  upon  feudal  principles  be- 
longed to  the  lords.  ^  But  we  have  been  antici- 
pating a  bit  and  speaking  of  developments  which 
really  belong  to  the  thirteenth  century.  What 
at  present  interests  us  is  that  from  1159  on  we 
frequently  find  a  land-charge  called  scutage 
and  in  John's  reign  see  centering  about  it  and 
the  related  duty  of  service  a  struggle  for  liberty. 
In  its  earlier  history  scutage  was  the  charge 
*  1  PoU.  &  Mait.  (2d  ed.)  267-274. 


114      THE  STRUGGLE  FOR  MAGNA  CARTA 

collected  directly  from  the  tenants-in-chief  in 
lieu  of  military  service.  Although  its  incidence 
might  ultimately  be  upon  the  under-tenants, 
it  fell  in  the  first  instance  upon  the  tenants-in- 
chief,  and  of  these  the  greater  barons,  as  the 
larger  taxpayers,  held  somewhat  the  same  posi- 
tion of  importance  as  they  had  held  when  fur- 
nishing the  largest  fighting  forces.  About  them 
as  leaders  would  naturally  center  any  disaffec- 
tion which  abuse  of  the  new  land  tax  might 
arouse. 

Inasmuch  as  scutage  was  a  substitute  for 
military  service*  due  and  not  given,  it  was  in 
origin  a  feudal  impost  which  the  king  could 
claim  without  even  the  formal  grant  of  the  Great 
Council,  which  was  in  theory  necessary  in  case 
of  an  extraordinary  tax.  Thus  that  of  1159  was 
simply  "taken."  *  In  1198,  however,  Richard  I 
wished  for  a  variation  of  the  usual  levy,  and 
demanded  either  three  hundred  knights  for  a 
year's  service  or  their  equivalent  in  money.  The 
request  being  extraordinary,  since  not  based 

•  *  "  Sumptis  Ix.  solidis,"  Rob.  de  Monte,  in  Stubbs,  Sd. 
ChaH.  (8th  ed.)  129.  Cf.  Dial  de  Scac.  lib.  i,  ix.  "It  happens 
sometimes  that,  when  the  machinations  of  enemies  threaten  or 
attack  the  kingdom,  the  king  decrees  that,  from  the  different 
knight's  fees,  a  certain  sum  shall  be  paid,  to  wit,  a  mark  or  a 
pound." 


THE  STRUGGLE  FOR  MAGNA  CARTA      115 

upon  the  usual  feudal  due  of  service  for  forty 
days,  the  Archbishop  of  Canterbury  evidently 
thought  it  best  to  obtain  the  formal  consent 
of  the  Great  Council.  Therefore  he  called  that 
body  together  at  Oxford,  and  presented  the  case, 
doubtless  with  the  expectation  that  it  would 
meet  with  the  usual  subservient  approval  of  the 
barons.  How  much  reason  he  had  for  the  ex- 
pectation is  shown  by  the  story  of  the  chroni- 
cler, for  "  while  all  the  rest  were  disposed  to  do 
this,  not  daring  to  resist  the  will  of  the  king, 
Bishop  Hugh  of  Lincoln  alone,  a  true  respecter 
of  God,  refraining  from  every  base  work,  an- 
swered for  himself  that  he  would  not  yield  a  jot 
to  this  will  of  the  king,  both  because  in  the  pro- 
cess of  time  it  would  redound  to  the  detriment 
of  his  church,  and  because  his  successors  would 
say,  *Our  fathers  have  eaten  a  sour  grape  and 
the  children's  teeth  are  set  on  edge.'"*  The 
bishop  declared  that  the  lands  of  his  church 
of  Lincoln  were  liable  for  military  service  in 
England  alone;  without  its  bounds  her  knights 
would  not  go.  Upon  this  the  Bishop  of  Salisbury 
gained  the  courage  to  side  with  the  Bishop  of 
Lincoln,  and  the  council  was  dismissed  by  the 

*  Roger  de  Hoveden,  iv,  40,  in  Stubbs,  Sd.  Chart.  (8th  ed.) 
ft55. 


116      THE  STRUGGLE  FOR  MAGNA  CARTA 

incensed  justiciar.*  This  second  instance  of 
opposition  to  taxation  in  council  is  here  related 
a  second  time  because  of  its  relation  to  the  con- 
troversy about  scutage  and  military  service, 
which  from  now  on  kept  recurring  and  finally 
culminated  in  Magna  Carta. 

The  barons  had  sujffered  the  oppressions  of 
Richard  in  almost  unbroken  silence,  but  were  not 
inclined  to  allow  their  patience  much  longer 
to  be  taxed.  Of  John's  turbulent  nature  they 
had  indications  enough  during  Richard's  life,  so 
in  the  interregnum  after  the  latter's  death  there 
was  considerable  uneasiness.  The  situation  was 
more  like  that  attendant  upon  the  accessions  of 
the  Norman  kings  than  upon  those  of  Henry  II 
and  Richard.  John  did  not  come  to  the  throne 
with  nothing  to  ask  of  the  people;  he  was  dis- 
trusted, and  must  secure  support.  Archbishop 
Hubert  allayed  the  fears  of  the  barons  by  pro- 
mises on  behalf  of  John  of  redress  of  every 
grievance,  promises  which  were  emphasized  at 
the  time  of  the  coronation.' 

John  immediately  entered  upon  his  course  of 
broken  faith  by  levying  in  the  very  first  year 
of  his  reign  a  scutage  of  three  marks  on  account 

*  Vita  Magna  S.  Hugonis,  248,  in  Stubbs,  Sd.  Chart.  (8th  ed.) 
fl55.  2  Stubbs,  Canst.  Hid.  §  151. 


THE  STRUGGLE  FOR  MAGNA  CARTA      117 

of  the  war  in  Normandy  and  a  carucage  of  three 
shillings,  both  in  excess  of  the  usual  rate.^  It 
is  little  wonder  that  when  the  king  in  1201 
ordered  the  barons  to  meet  him  at  Portsmouth 
prepared  to  cross  to  France,  they  took  private 
counsel  together  and  demanded  the  reforms 
which  he  had  promised  as  a  condition  of  serv- 
ice. The  remonstrance  only  added  to  their 
grievances,  however,  for  the  angered  king  seized 
their  castles.'  To  make  matters  worse,  when 
the  barons  did  finally  assemble  according  to 
command,  John  gave  up  the  expedition,  and, 
taking  from  some  of  them  the  money  which  they 
had  brought  for  support  in  his  service,  sent  them 
back  home.^  Then  in  two  years  came  the  ex- 
action of  a  seventh  of  the  movables  of  the  barons 
for  pretended  breach  of  duty  to  serve  and  de- 
sertion from  the  king,  who,  having  got  them  into 
Normandy,  had  shown  an  unwillingness  to 
fight,  which  sent  them  home  disgusted.*  In  1204, 
however,  the  barons  were  still  sufficiently  afraid 
of  the  king  to  grant  him  a  scutage  of  two  marks 

»  R.  CoggeshaJe,  in  Stubbs,  Sel.  ChaH.  (8th  ed.)  272. 
'  Roger  de  Hoveden,  iv,  160, 161,  in  Stubbs,  Sd.  Chart.  (8th 
ed.)  272. 

'  Roger  de  Hoveden,  iv,  163,  in  Ibid. 
*  Matthew  Paris,  209,  in  Ibid. 


118      THE  STRUGGLE  FOR  MAGNA  CARTA 

and  a  half.*  The  next  year  they  did  attempt 
a  stand  for  their  rights.  At  a  Great  Council 
at  Oxford  they  approved  of  a  reorganization  of 
the  army  by  which  every  nine  knights  were  to 
join  to  equip  a  tenth  with  wages  of  two  shillings 
a  day  for  the  country's  defense.  Oaths  of  fealty 
were  required  of  the  whole  nation.  In  return 
John  was  himself  obliged  to  swear  to  observe 
the  rights  of  the  kingdom.^  If  thebarons  thought 
they  had  won  a  victory,  they  were  grievously 
deceived,  for  John  immediately  assembled  an 
army  at  Portsmouth  under  pretense  of  crossing 
the  Channel,  embarked  and  made  motion  to 
sail,  then  played  his  old  trick  of  abandoning 
the  enterprise  because  of  the  unwillingness  of 
the  barons  to  follow  him,  and  took  their  money 
from  them.' 

The  patience  of  the  barons  was,  however, 
capable  of  further  trial  before  their  spirits  would 
rise  to  the  point  of  revolt,  and  it  was  not  until 
the  events  of  the  year  1213  that  the  weight  of 
military  service  and  taxation  upon  the  landed 
men  finally  induced  them  to  act.  John  proposed 
an  expedition  to  France.  The  barons  demurred 

*  Matt.  Paris,  209,  in  Stubbs,  Sel  ChaH.  (8th  ed.)  272. 

*  Stubbs,  Canst.  Hist.  §  154. 

"  Matt.  Paris,  212,  in  Stubbs,  Sel.  ChaH.  (8th  ed.)  273. 


THE  STRUGGLE  FOR  MAGNA  CARTA      110 

on  the  ground  that  he  was  still  excommunicate. 
After  the  absolution  of  the  king  which  soon  fol- 
lowed, this  plea  lost  its  force,  and  when  the  king 
renewed  his  proposal,  other  excuses  had  to  be 
advanced.  The  northern  barons,  following  the 
example  of  Hugh  of  Lincoln  in  1198,  asserted 
that  they  were  not  bound  by  their  tenure  to 
foreign  service.  This  was  too  much  for  John's 
temper,  and  he  gathered  his  immediate  forces 
and  started  northward;  but  his  ardor  cooled  with 
usual  rapidity,  and  the  march  was  suddenly 
reversed. 

On  August  4,  1213,  came  the  assembly  called 
by  the  justiciar,  Geoffrey  Fitz-Peter,  to  meet  at 
S.  Alban's  to  inquire  concerning  the  value  of  the 
lands  for  which  the  church  demanded  restitu- 
tion of  the  king.  This  assembly  was  attended 
not  only  by  the  bishops  and  barons,  but  by  re- 
presentatives of  the  township.  Thus  for  the  first 
time  in  an  English  national  meeting  the  small 
landowners  found  a  place.  The  council  de- 
parted somewhat  from  the  business  for  which 
it  was  summoned.  The  justiciar  laid  before  it 
the  promise  of  good  government  which  the  king 
had  just  made  on  his  absolution  and  which  was 
already  broken.  He  also  issued  an  edict  for- 
bidding illegal  exactions  and  referred  to  the  laws 


120      THE  STRUGGLE  FOR  MAGNA  CARTA 

of  Henry  I  as  the  basis  for  reforms.  At  another 
council  at  S.  Paul's,  on  the  25th  of  August,  at- 
tended only  by  clerics  and  barons,  the  charter 
of  Henry  I  was  produced  and  made  the  basis 
of  claims  which  the  justiciar  laid  before  the  king, 
but  the  immediate  death  of  Geoffrey  and  the 
king's  absence  abroad  during  most  of  the  year 
1214  postponed  for  a  time  a  settlement  of  the 
differences. 

Upon  his  return  in  October,  1214,  John 
thought  immediately  to  have  an  accounting 
with  the  northern  barons,  but  they  were  too 
prompt  for  him.  They  took  solemn  oath  with 
each  other  to  withdraw  their  allegiance  if  the 
king  did  not  give  them  immediate  security  for 
their  liberties  by  a  charter  under  his  seal,  and 
to  enforce  their  demands  agreed  to  raise  an 
armed  force.  John  attempted  to  make  a  divi- 
sion of  his  opponents  by  promising  to  the  clergy 
freedom  of  election,  the  denial  of  which  had  led 
to  his  quarrel  with  the  church,  the  interdict  of 
the  realm,  and  his  excommunication.  But  the 
bishops  had  made  common  cause  with  the  lay 
barons  and  were  not  to  be  diverted.  In  Janu- 
ary, 1215,  John  heard  the  demands  of  the  barons, 
and,  playing  for  time,  secured  a  truce  until  after 
Easter.    Meanwhile  he  again  issued  a  charter 


THE  STRUGGLE  FOR  MAGNA  CARTA      121 

of  freedom  to  the  church,  directed  an  oath  of 
fealty  to  be  taken  throughout  England,  and  de- 
manded renewed  homage  from  the  tenants-in- 
chief.  He  even  took  the  vow  of  Crusade  in  order 
to  make  an  attack  upon  him  sacrilege.  But  his 
efforts  were  in  vain.  The  barons  assembled 
their  army  at  Stamford,  and  as  soon  as  the  truce 
was  ended  marched  to  Brackley.  John,  fifteen 
miles  away  at  Oxford,  was  duly  alarmed.  He 
sent  a  deputation  to  ask  their  conditions,  which 
were  dispatched  to  the  king  with  the  threat  that, 
if  they  were  not  granted,  open  war  would  follow. 
John  angrily  refused  peace  upon  such  terms, 
although  at  about  this  time  he  did  offer  the 
barons  a  promise  that  neither  he  nor  his  men 
would  go  upon  them  or  their  men  but  by  the 
judgment  of  their  peers  or  the  law  of  the  land.* 
The  barons  had  a  larger  principle  at  stake, 
however,  and  happily  declined  to  be  pacified, 
for  only  a  few  weeks  later  they  wrung  from  the 
king  the  same  promise  as  to  all  freemen,^  be- 
sides many  other  concessions.  The  baronial 
army  no  longer  delayed.  Marching  to  London, 
they  completed  their  successful  show  of  force  by 
winning  to  their  side  the  remnants  of  the  king's 

*  Blackstone,  Introduction  to  the  Charters,  xiii,  note  x. 
'  Mag.  CaH.  c.  39. 


122      THE  STRUGGLE  FOR  MAGNA  CARTA 

supporters.  John  yielded  perforce  and  executed 
the  Great  Charter  of  Hberties  on  June  15,  at 
Runnymede.^ 

Magna  Carta  was  therefore  in  its  inception 
a  protest  of  the  landed  man  against  the  impo- 
sition of  burdens  upon  his  land.  Even  had  we 
not  the  detailed  account  of  the  events  which  led 
to  the  charter,  the  document  itself  bears  con- 
vincing internal  evidence  of  the  part  which  the 
owners  of  land  played  in  securing  it.  No  less 
than  sixteen '  of  the  sixty-three  clauses  relate 
directly  to  the  limiting  of  feudal  obligations. 
Three '  refer  to  amercements  with  which  John 
had  oppressed  his  people,  and  save  to  the  amerced 
certain  rights  in  land.  Seven  *  put  a  check  upon 
the  king  and  his  officers  in  the  execution  upon 
the  land  of  purveyance,  tax  debts  to  the  crown, 
bridge  taxes,  and  ferms.  Two  ^  regulate  the 
payment  of  debts  to  the  Jews  and  other  credit- 
ors from  the  real  estate  of  deceased  men,  sav- 
ing the  rights  of  the  lord  in  the  tenement,  the 
dower  of  the  widow,  and  the  support  of  the  chil- 

*  Stubbs,  Const.  Hist.  §  154;  Blackstone,  Int.  to  Chart,  ix, 
et  seq. 

^  Clauses  2-8,  12, 15,  16,  29,  32,  37,  43,  46,  53. 

'  Clauses  20-22.     *   Clauses  9,  23,  25,  26,  28,  30,  SI. 

*  Clauses  10, 11. 


THE  STRUGGLE  FOR  MAGNA  CARTA      123 

dren.  Three  *  protect  landowners  from  dis- 
seisin by  the  king  without  the  verdict  of  their 
peers.  Most  important  of  all,  two  clauses  2 
secure  the  right  of  the  tenants-in-chief  to  con- 
sent to  taxation.  No  scutage  or  aid  was  to  be 
imposed  in  the  kingdom  unless  per  commune 
concilium  regni,  except  in  case  of  the  three  pri- 
mary feudal  aids  for  ransom  of  the  king's  per- 
son, making  his  eldest  son  knight,  and  once 
marrying  his  eldest  daughter;  and  even  these 
were  to  be  reasonable.  The  common  counsel 
was  to  be  given,  in  the  cases  not  excepted,  by 
an  assembly  to  be  called  by  the  king;  the  arch- 
bishops, earls,  and  greater  barons  to  be  sum- 
moned by  writs  directed  to  each  severally,  all 
other  tenants-in-chief  by  general  writs  addressed 
to  the  sheriff  of  each  county;  the  writs  to  fix  a 
place  for  meeting  and  a  time  not  less  than  forty 
days  distant,  the  purpose  of  the  council  to  be 
set  forth;  the  consent  of  those  present  to  bind 
those  who  did  not  attend.  Here  the  "common 
consent  of  the  realm"  was  effectively  recog- 
nized; henceforth  the  principle,  although  not 
yet  perfect  and  often  temporarily  ignored,  was 
thoroughly  rooted  in  the  constitution. 

1  Clauses  52,  56,  57.  ^  clauses  12, 14. 


124      THE  STRUGGLE  FOR  MAGNA  CARTA 

Of  the  many  clauses  relating  to  the  adminis- 
tration of  justice,  a  few  deserve  our  special  con- 
sideration, both  for  their  intrinsic  importance  as 
safeguards  of  liberty  and  for  the  relation  which 
the  landed  man  bore  to  them.  The  influence 
of  the  landed  man  in  the  divorcement  of  jus- 
tice from  the  person  of  the  king  has  already 
been  touched  upon.  In  Magna  Carta  we  see  it 
illustrated  in  the  separation  of  the  Court  of 
Common  Pleas  from  the  king's  immediate  court 
and  its  establishment  in  one  certain  place.*  The 
barons  also  saw  to  it  that  the  assizes  of  novel 
disseisin,  mort  d'ancestor,  and  darrein  present- 
ment should  be  taken  in  the  counties  where 
the  cases  arose.  Two  justices  were  to  go  into 
each  county  four  times  a  year  and,  with  four 
knights  chosen  by  the  county,  hold  these  as- 
sizes in  connection  with  the  county  court.' 

Justices,  constables,  sheriffs,  and  bailiffs  the 
king  was  to  choose  only  from  such  as  knew  the 
laws  of  the  land  and  had  a  will  to  observe  them.' 
Here  was  the  entering  wedge  of  popular  con- 
trol of  judicial  officers.  It  would  be  long  be- 
fore it  would  become  efficient,  but  already  the 
barons  recognized  that  their  Uberties  depended 
much  upon  learned  and  conscientious  judges. 

»  Mag.  CaH.  c.  17.       '  Ibid.  cc.  18, 19.        »  Ibid.  c.  45. 


THE  STRUGGLE  FOR  MAGNA  CARTA      125 

No  thought  had  yet  appeared  of  taking  from 
the  king  any  of  his  right  to  create  or  abolish 
courts  and  to  appoint  or  remove  justices,  but 
it  was  required  of  him  by  the  barons  that  he 
use  good  faith  in  appointment.  Further  to  se- 
cure just  judgment,  sheriffs,  constables,  and 
coroners  were  not  to  hold  Pleas  of  the  Crown;  * 
those  cases  were  reserved  for  justices  better 
qualified  than  they. 

The  answerability  of  the  king  to  the  people 
in  the  exercise  of  his  judicial  prerogative  found 
stirring  phraseology  in  two  of  the  capital  clauses 
of  Magna  Carta.  "To  none  will  we  sell,  to 
none  will  we  deny  or  delay  right  or  justice."  "^ 
Justice  must  be  free  and  prompt.  It  had  not 
been  so  at  all  times  in  the  past;  it  would  not 
be  so  at  many  times  in  the  future;  but  here  was 
a  cardinal  right  enunciated  by  the  barons  in 
behalf  of  themselves  and  of  all  the  people,  and 
admitted  with  the  utmost  clearness  and  for- 
mality by  the  king.  It  was  not  the  statement  of 
a  new  right  indeed,  but  a  covenant  regarding 
an  old  one  to  which  every  man  could  point  and 
say,  "Here  is  my  guaranty  of  justice."  Then 
there  was  that  other  assurance  of  the  preced- 
ing clause:  "No  freeman  shall  be  taken  or 

^  Mag.  CaH.  c.  24.  *  j^j^j  ^  ^q 


126      THE  STRUGGLE  FOE  MAGNA  CARTA 

imprisoned  or  disseised  or  outlawed  or  exiled 
or  in  any  manner  destroyed,  nor  will  we  go 
upon  him,  nor  will  we  send  upon  him,  except 
by  the  lawful  judgment  of  his  peers  or  the  law  of 
the  land."  *  We  have  already  noticed  John's 
tyrannical  act  in  seizing  the  castles  of  the  barons 
who  declined,  unless  he  kept  his  promises  of 
reform,  to  accompany  him  to  France  in  1201.^ 
Again  in  1212  those  suspected  of  defection  were 
arrested  and  lost  their  castles.'  These  events 
may  furnish  a  key  to  the  demand  of  the  barons 
for  such  a  clause  as  the  thirty-ninth, 

"The  words,  *We  will  not  destroy  him,  nor 
will  we  go  upon  him,  nor  will  we  send  upon 
him,'  have  been  very  differently  expounded 
by  different  legal  authorities.  Their  real  mean- 
ing may  be  learned  from  John  himself,  who 
the  next  year  promised  by  his  letters  patent 
.  .  .  nee  super  eos  per  vim  vel  per  arma  ibimus, 
nisi  per  legem  regni  nostri,  vel  per  judicium 
parium  suorum  in  curia  nostra.  He  had  hitherto 
been  in  the  habit  of  going  with  an  armed  force, 
or  sending  an  armed  force  upon  the  lands,  and 
against  the  castles,  of  all  whom  he  knew  or  sus- 

*  Mag.  Cart.  c.  39. 

'  Roger  de  Hoveden,  iv,  161,  in  Stubbs,  Sd.  Chart.  (S\h  ed.) 
272.  '  Stubbs,  C(md.  Hist.  §  153. 


THE  STRUGGLE  FOR  MAGNA  CARTA      127 

pected  to  be  his  secret  enemies,  without  observ- 
ing any  form  of  law.  Thus  in  1276  the  peers, 
in  conformity  with  this  article  of  the  charter, 
adjudged  that  the  king  should  go  upon  Llew- 
ellyn, prince  of  Wales,  quod  eat  super  ipsum 
tanquam  super  rebellem  suum  et  pacis  suae 
perturbatorem."  *  Such  being  the  state  of 
affairs,  it  is  little  wonder  that  Magna  Carta 
contains  a  clause  restraining  the  king  to  a  legal 
exercise  of  his  prerogative, —  a  clause  which, 
though  often  broken,  has  stood  ever  since  as  a 
bulwark  of  English  Uberty.  The  breaches  have 
but  brought  reiteration  of  the  principle,  and 
reiteration  has  brought  observance. 

The  provisions  for  the  enforcement  of  the 
charter  are  interesting  as  showing  how  far  the  ex- 
igencies of  tyranny  had  led  the  barons  to  claim 
self-government.  To  them  was  given  the  right 
to  elect  twenty-five  of  their  number  to  "  observe, 
keep  and  cause  to  be  observed,  the  peace  and 
liberties"  which  the  charter  had  granted  to 
them.  K  the  king  or  any  of  his  oflScers  should 
injure  any  one  in  anything  or  violate  any  arti- 
cle of  the  charter,  and  complaint  were  made 
to  four  of  the  twenty-five,  those  four  were  to 
make  petition  of  redress  to  the  king  or,  if  he 

*  2  Lingard,  History  of  England  (6th  ed.)  177»  note  3. 


128      THE  STRUGGLE  FOR  MAGNA  CARTA 

were  out  of  the  kingdom,  to  his  justiciar.  If 
then  no  redress  was  had  within  forty  days,  the 
four  barons  were  to  lay  the  matter  before  the 
rest  of  the  twenty-five,  who  then  might  distress 
and  harass  the  king  in  any  way  they  were  able, 
even  to  the  taking  of  castles,  lands,  and  pos- 
sessions, sparing  only  the  persons  of  the  royal 
family.  Every  man  who  took  oath  before  the 
barons  was  to  be  absolutely  privileged  from  in- 
terference from  the  crown  because  of  the  oath.^ 
Never  before  had  such  powers  of  initiative  in 
national  affairs  been  allowed  to  subjects;  never 
before  had  the  king  submitted  to  anything 
savoring  so  much  of  self-government. 

While  it  was  the  barons,  who,  smarting  under 
tyrannical  impositions  upon  their  land,  struck 
those  decisive  blows  which  forced  from  the 
king  this  remarkable  declaration  of  rights  and 
liberties,  they  were  the  leaders  of  an  aroused 
nation,  now  feeling  its  solidarity  and  strength. 
As  the  largest  sufferers  and  the  nearest  to  the 
king,  it  was  the  barons,  lay  and  cleric,  who 
were  best  fitted  to  direct  the  struggle  and  lead 
to  victory.  But  they  found  support  in  all  ranks, 
for  every  landowner  felt  the  cruel  impress  of 
taxation,  and  even  the  villeins  suffered  in  con- 

*  Mag.  Cart.  c.  61. 


THE  STRUGGLE  FOR  MAGNA  CARTA      129 

sequence.  Perhaps  the  barons  would  not  have 
won  their  point  without  this  support.  At  any 
rate  the  more  lowly  men  who  had  joined  the 
common  cause  were  not  forgotten;  the  benefits 
of  the  charter  were  for  all  classes  and  condi- 
tions, and  what  the  king  agreed  to  do  for  the 
barons,  the  barons  promised  to  do  for  their 
tenants,  thus  becoming  enforcers  of  the  liber- 
ties of  the  whole  nation.^ 

While  comparatively  few  of  the  provisions 
of  Magna  Carta  stated  novel  rights  and  thus 
in  this  connection  httle  may  be  claimed  for  the 
landed  man  in  the  way  of  originating  liberties, 
it  is  of  great  significance  that  he  even  won  from 
the  king  an  admission  of  ancient  principles. 
Those  principles  had  been  much  in  abeyance 
under  a  reign  of  tyranny,  and  were  in  serious 
danger  of  being  lost  sight  of.  Their  statement 
by  the  king  was  salutary.  While  he  might 
immediately  proceed  again  to  ignore  them,  he 
had  left  an  indelible  record  for  future  reference. 
Theoretically  there  must  henceforth  be  a  reign 
of  law.  When  the  king  overrode  right,  as  often 
he  did,  here  was  a  declaration  of  law  incapable 
of  denial,  though  not  of  evasion.  Other  char- 
ters had  been  forgotten;  this  one,  purchased 

*  Mag.  Cart.  c.  60. 


180      THE  STRUGGLE  FOR  MAGNA  CARTA 

by  a  nation  of  united  purpose  at  the  cost  of  a 
memorable  struggle,  was  never  forgotten.  When 
infringed  by  kings  tenacious  of  prerogative,  the 
people,  cowed  perhaps  for  a  time  into  silence, 
would  demand  its  renewal;  and  the  kings,  unable 
to  dispute  the  published  law,  must  again  and 
again  assent  to  its  declaration  of  right.  Thus 
Magna  Carta  has  stood  through  the  passing  cen- 
turies as  the  bulwark  of  liberties  whose  reitera- 
tion has  turned  what  was  once  precarious  into 
what  is  now  unshaken. 


VI 

THE    BEGINNINGS    OP    PARLIAMENT 

The  immediate  gains  to  civil  liberty  from  Magna 
Carta  were  principles  rather  than  facts.  Full 
as  were  the  concessions  to  the  power  of  the 
council  to  consent  in  taxation,  there  was  not 
for  some  time  anything  like  a  parliament.  In- 
deed the  baronial  party  soon  found  that,  as  far 
as  present  reform  was  concerned,  nothing  was 
gained.  Probably  John  signed  the  charter  with 
the  intention  well  formulated  in  his  own  mind 
to  repudiate  it  as  soon  as  he  was  no  longer  com- 
pelled to  take  the  barons  into  consideration. 
However  that  might  be,  he  continued  to  keep 
his  followers  in  arms  and  to  strengthen  his 
forces.  On  the  other  side  similar  precautions 
were  taken,  and  Magna  Carta  became  an  armed 
truce  rather  than  a  treaty  of  peace.  Meanwhile 
the  most  powerful  of  the  earls  returned  to  the 
king.  These  defections  from  the  cause  of  the 
barons  grew  out  of  several  sources.  In  the  first 
place  jealousies  arose  which  quickly  divided 
the   men   whose   grievances   had   so   recently 


/ 


1S«       THE  BEGINNINGS  OF  PARLIAMENT 

served  as  a  bond.  Then  some  of  them,  slow 
to  leam  the  perfidy  of  John,  credited  him  with 
good  intentions  in  executing  the  charter  and 
went  to  his  support  as  against  those  whose  dis- 
trust kept  them  in  open  readiness  for  hostiUty 
to  the  king.  Furthermore,  in  August,  1215, 
Pope  Innocent  III  annulled  the  charter  and 
forbade  John  to  keep  his  oath.  As  a  result,  the 
clergy,  who  really  were  on  the  popular  side,  had 
to  be  very  careful  of  showing  any  opposition 
to  the  king. 

The  worst  fears  of  the  barons  as  to  John's 
good  faith  were  fully  justified  at  a  time  when 
their  strength  was  thus  on  the  ebb.  The  twenty- 
five  executors  became  desperate  and  called 
for  foreign  aid,  offering  the  crown  to  Louis  of 
France.  War  was  again  precipitated,  John 
reduced  the  North,  and  the  rebellious  barons 
were  excommunicated.  In  the  midst  of  the 
consequent  discouragement  of  the  baronial 
party,  Louis  arrived  with  a  large  force  and  turned 
the  tide  of  victory.  Many  of  the  earls  deserted 
the  king,  but  a  few  remained  faithful,  notably 
the  Earl  of  Pembroke.  During  the  summer  of 
1216  the  struggle  continued,  but  England  found 
relief  in  the  deaths,  in  August  of  Pope  Inno- 
cent, and  in  October  of  the  tyrant  John.* 
*  Stubbs,  Canst.  Hist.  §  169. 


THE  BEGINNINGS  OF  PARLIAMENT        133 

The  country  was  doubly  fortunate  in  the 
death  of  the  king,  for,  besides  being  rid  of 
John,  it  got  as  heir  to  the  throne  a  nine-year- 
old  boy.  The  minority  of  Henry  III  gave  an 
opportunity  for  the  barons,  or  at  least  some 
of  them,  to  handle  the  reins  of  government. 
Thus  the  baronial  party  became  rehabilitated 
and  used  to  the  exercise  of  power,  while  the  peo- 
ple became  accustomed  to  seeing  somebody  be- 
side the  king  in  authority  and  to  look  for  sources 
of  power  elsewhere  than  in  the  crown.  Then 
first  began  to  arise  the  principle  that  the  king 
(because  he  can  do  nothing)  can  do  no  wrong, 
and  that  the  ministers  who  act  for  him  are  liable 
to  the  people.* 

A  powerful  basis  for  the  reunion  of  discord- 
ant elements  was  found  in  Magna  Carta.  With 
John  and  Innocent  no  longer  obstructing,  all 
were  willing  that  the  charter  should  be  ob- 
served. The  first  act  of  the  royal  party,  after 
crowning  Henry  III  and  appointing  the  Earl 
of  Pembroke  regent,  was  to  republish  Magna 
Carta  with  the  consent  of  the  papal  legate, 
Gualo.  The  barons  of  the  royal  party  and  the 
new  pope  thus  became  the  supporters  of  lib- 
erty.    Many  of  the  old  baronial  party  there- 

*  2  Anson,  Law  and  Custom  of  the  Constitviion,  15. 


1S4       THE  BEGINNINGS  OF  PARLIAMENT 

upon  changed  front,  but  the  obstinate  and  those 
who  felt  in  honor  bound  to  Louis,  although 
standing  for  nearly  the  same  principles  as  the 
royaUsts,  did  not  see  their  way  clear  to  sup- 
port Henry.  The  baron  executors,  being  given 
no  power  by  the  new  issues  of  the  charter,  also 
opposed  the  young  king.  In  danger  of  excom- 
munication for  opposition  to  the  pope,  Louis 
was  called  home  by  his  father  for  a  council.  His 
absence  was  the  signal  for  defections,  and  he 
returned  to  England  to  find  a  forlorn  hope, 
which  in  September,  1217,  became  failure  and 
surrender.  The  treaty  then  made  was  honor- 
able to  all.  Nobody  was  to  lose  for  the  stand 
he  had  taken;  all  were  pacified;  everybody 
united  in  support  of  the  young  king;  Magna 
Carta  was  again  reissued.* 

With  the  affairs  of  the  nation  under  the  di- 
rection of  a  regent  elected  by  the  Great  Council, 
the  conditions  were  apparently  most  favorable 
for  the  tenants-in-chief  to  exercise  that  power 
in  taxation  which  Magna  Carta  had  promised 
them.  It  is  somewhat  surprising  therefore  that 
in  the  republications  of  1216  and  1217  the  con- 
stitutional clauses '  of  the  Great  Charter  find 
no  place.    The  reason  for  the  omission  has  al- 

»  Stubbs,  Ccmst.  Hist.  §  170.        '  Mag.  Cart.  cc.  12, 14. 


THE  BEGINNINGS  OF  PARLIAMENT        135 

ways  been  a  subject  of  question,  but  no  sat- 
isfactory solution  has  ever  been  given.  Pro- 
fessor Gneist  has  ventured  the  suggestion  that 
the  greater  barons,  who  under  Pembroke  were 
in  power,  were  jealous  of  sharing  their  au- 
thority with  the  lesser.*  Whatever  the  cause, 
the  omission  was  not  a  grave  one,  for  in  prac- 
tice the  Great  Council  of  specially  summoned 
greater  barons  consented  to  taxation,^  and 
finally  the  smaller  tenants-in-chief  by  their 
representatives  came  to  exercise  similar  privi- 
leges. The  forty-fourth  clause  of  the  charter 
of  1217  provided  that  scutage  should  be  taken 
as  in  the  time  of  Henry  II.  The  force  of  this 
provision  is  not  clear,  but  as  a  scutage  taken 
at  nearly  the  same  time  was  assessed  by  the 
commune  concilium  it  can  hardly  be  taken 
to  mean  that  the  tax  could  be  laid  without 
consent.  In  all  matters  of  taxation,  Pembroke 
seems  to  have  consulted  the  Great  Council.' 

So  also  the  principle  of  consent  to  taxation 
was  consistently  observed  after  the  death  of 
Pembroke  in  1219.  But  in  1225  there  came 
an  event  which,  while  in  fact  an  exercise  of 
the  right  to  consent,  was  in  form  a  precedent 

*  Gneist,  The  English  Parliament  (Shee  translation)  88,  89. 
2  Ibid.  97.  »  Stubbs,  Const.  Hist.  §  170. 


136       THE  BEGINNINGS  OF  PARLIAMENT 

for  prerogative.  The  justiciar,  Hubert  de 
Burgh,  demanded  a  fifteenth  of  all  movables, 
which  was  granted  on  condition  of  a  recon- 
firmation of  the  charters.  The  enacting  clause 
did  not,  however,  speak  of  the  counsel  of  the 
barons,  as  in  previous  cases;  on  the  contrary 
it  referred  to  the  confirmation  as  of  the  king's 
good  will,  while  the  magnates  appeared  only 
as  witnesses.  The  theory  of  consent,  however, 
continued  to  gain  strength.  In  1232  the  pre- 
lates at  a  colloquium  at  Westminster  objected 
to  the  grant  of  an  aid  for  the  French  war  on 
the  ground  that  many  of  the  bishops  and  ab- 
bots who  had  been  summoned  were  not  pre- 
sent, and  sought  adjournment  until  all  could 
meet.*  Such  a  claim  exceeded  even  the  right 
granted  by  Magna  Carta,  which  specifically 
said  that  a  baron  summoned  and  not  attending 
would  be  taken  to  assent  to  the  action  of  those 
present.  The  following  year  the  necessity  of 
consent  was  illustrated  by  the  embarrassment 
under  which  the  barons  put  the  king  by  refusing 
to  obey  a  summons  to  council  unless  Henry 
would  dismiss  his  foreign  favorites.  Such  a 
refusal  would  hardly  have  been  made  and 
civil  war  would  hardly  have  followed  had  not 

*  Matt.  Paris,  372,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  325. 


THE  BEGINNINGS  OF  PARLIAMENT        187 

the  consent  of  the  Great  Council  been  more 
than  an  empty  formaHty.*  In  spite  of  the  omis- 
sion of  the  12th  and  14th  clauses  of  Magna 
Carta  from  the  charters  of  1216,  1217,  and 
1225,  in  spite  of  the  44th  clause  of  that  of  1217, 
common  consent  survived.  The  king's  way 
of  announcing  the  scutage  of  1235  was  that 
"the  counts  and  barons  and  all  others  of  our 
whole  kingdom  of  England,  of  their  own  will 
and  not  as  a  customary  exaction,  have  granted 
us  an  aid." ' 

Doubtless  deliberation  and  debate  had  be- 
fore this  begun  to  mark  the  granting  of  taxes, 
for  conditions  were  at  times  attached  to  con- 
cessions by  the  barons.  The  year  1242,  how- 
ever, furnishes  us  with  the  first  detailed  ac- 
count of  a  debate  in  regard  to  taxation.  Henry 
called  the  bishops  and  barons  to  London 
and  requested  an  aid  for  the  recovery  of  his 
foreign  possessions.  They  replied  that  it  would 
be  wise  to  await  the  end  of  the  truce  then 
existing  before  going  to  war,  representing  that 
repeated  and  ample  grants  had  been  made 
during  the  last  fifteen  years,  that  besides  these 
the    king    had    plentiful    resources;  neverthe- 

1  Stubbs,  C(mst,  Hist.  §  173. 

2  Stubbs,  Sd.  Chart.  (8th  ed.)  364. 


138       THE  BEGINNINGS  OF  PARLIAMENT 

less  at  the  expiration  of  the  truce  they  would 
do  what  they  could.  Henry  asked  how  much 
they  would  grant  if  he  waited,  and  hinted  at 
reforms  if  they  would  be  Uberal.  The  council 
was  not  to  be  duped.  Recalling  that  the  grant 
of  12S7  had  been  made  upon  condition  that 
the  money  be  put  into  the  custody  of  certain 
magnates  and  spent  under  their  direction,  a 
condition  which  had  not  been  fulfilled,  the 
barons  found  reason  to  question  the  king's 
good  faith,  and  refused  to  make  any  definite 
assurances.  Henry  did  not,  however,  stop  for 
constitutional  obstructions;  by  treating  with 
the  prelates  and  barons  singly,  he  succeeded 
by  force,  fraud,  or  persuasion  in  obtaining  a 
large  sum  of  money.*  Thus  the  Hberative 
tendencies  were  becoming  more  prominent,  al- 
though the  tyrannical  forces  were  slow  to  yield. 
It  is  of  the  utmost  importance  for  our  pur- 
pose to  notice  that  all  these  battles  in  the  strug- 
gle for  political  power  were  waged  about  tax- 
ation, for  where  fiscal  matters  were  involved 
the  landed  man  was  primarily  interested.  It 
must  be  admitted  that  much  of  the  hostiUty 
to  Henry  was  due  to  his  favoritism  to  foreign- 
ers, upon  whom  he  lavished  money  and  po- 

»  Stubbs,  Cmst.  Hist.  §  175;  Sd.  ChaH.  (8th  ed.)  368-370. 


THE  BEGINNINGS  OF  PARLIAMENT        139 

sition,  but  this  hostility  found  opportunity 
for  expression  most  readily  in  the  times  when 
the  king  asked  for  money.  It  was  on  such  oc- 
casions that  the  barons  were  able  to  make 
demands  and  impose  conditions  which,  though 
often  disregarded,  went  far  to  strengthen  the 
edifice  of  liberty.  Formality  of  consent  was 
gone;  the  council  had  attained  the  power  of 
flat  refusal.* 

But  the  assemblies  which  were  thus  estab- 
lishing, little  by  little,  the  practice  of  consent 
to  taxation,  were  still  far  from  being  parlia- 
ments as  we  understand  them.  They  were 
indeed  often  called  by  that  name,  but  were  in 
fact  bodies  of  no  fixed  constitution.  In  them 
only  the  bishops  and  barons  as  a  rule  found 
seats;  they  were  meetings  of  the  larger  land- 
owners, specially  summoned,  and  were  in  fact 
Great  Councils.  Important  as  were  the  prin- 
ciples which  they  were  fixing,  the  legislative 
power  of  the  subject  could  be  fully  vindicated 
only  by  a  real  parliament,  with  representatives 
of  the  smaller  landowners  of  the  shires  and 
townships.  To  the  old  Germanic  institutions 
the  national  legislature  had  to  look  for  its  vigor. 

*  Such  refusal  was  repeatedly  given.  Stubbs,  Const,  Hist. 
§  175. 


140        THE  BEGINNINGS  OF  PARLIAMENT 

We  have  seen  how  the  germ  of  popular  gov- 
ernment survived  the  migration  and  the  rise 
of  kings,  survived  even  centralization  and  feu- 
dalization  and  tyranny,  to  flourish  quietly  but 
strongly  in  the  shire  and  hundred  and  town- 
ship. We  have  seen  how,  through  the  fiscal 
relations  of  the  local  courts  to  royal  justice, 
trial  by  jury  came  about.  More  remarkable 
still  was  the  way  in  which  fiscal  affairs  brought 
those  same  Germanic  institutions  of  shire 
and  town  into  contact  with  national  taxation 
and  finally  made  the  popular  elements  the 
essence  of  the  national  legislature;  for  "the 
lawmaker,  the  holder  of  the  legislative  power, 
is  the  real  sovereign  of  the  country."  *  In  a 
matter  of  such  significance,  we  may  then  be 
pardoned  if  we  go  back  for  a  century  and  a 
half  to  weave  together  some  of  the  threads  of 
the  fabric. 

In  the  first  place  we  must  bear  in  mind  that 
the  shire  court  was  a  representative  body, 
containing  —  besides  the  earls,  bishops,  and 
barons  —  the  priest,  reeve,  and  four  men  of 
each  township.  We  must  think  of  the  town- 
ship as  "the  body  of  alodial  owners."  "It 
is  as  an  owner  of  land,  or  as  a  fully  qualified 

*  Medley,  Stud.  Man.  of  Eng.  Const.  Hist.  58. 


THE  BEGINNINGS  OF  PARLIAMENT        141 

'lawful  man'  .  .  .  that  the  freeman  has  rights 
and  duties."  *  Among  the  rights  of  the  free 
landowner  of  the  township  was  the  privilege 
of  participation  in  the  tun-gemot,  which  made 
by-laws,  elected  its  own  officers  (the  reeve, 
tithingman,  and  beadle),  arranged  the  repre- 
sentation of  its  interests  in  the  higher  courts, 
and  carried  on  certain  matters  of  local  fiscal 
and  police  administration  .^  Very  likely  the 
four  men  were  elected  by  the  free  landowners; 
but  even  if  they  were  not,  they  were  their  re- 
presentatives in  a  very  strict  sense.  Thus  the 
principles  of  election  and  representation  were 
found  in  the  township. 

After  the  Norman  Conquest  these  princi- 
ples came  into  close  contact  with  national 
affairs  through  the  inquests.  That  very  earli- 
est fiscal  inquest,  the  Domesday  Survey,  was 
not  made  without  recourse  to  the  represent- 
ative local  machinery  which  was  found  con- 
veniently at  hand.  The  oaths  were  taken  in  the 
shire  court  by  sworn  representatives  of  the  shire, 
of  the  hundred,  and  of  the  township.'  During 

*  Stubbs,  Canst.  Hist.  §  39. 

^  Ibid.  §  43.  This  was  the  case  in  free  townships.  Those  de- 
pendent upon  lords  were  somewhat  restricted. 

'  Maitland,  D.  B.  and  Beyond,  10-12;  Stubbs,  Consi.  Hist. 
§  126. 


142       THE  BEGINNINGS  OF  PARLIAMENT 

the  reign  of  Henry  II  fiscal  inquests  to  determine 
the  taxable  property  became  very  frequent. 
Necessarily  they  were  made  by  men  who  knew 
the  property  which  was  to  be  assessed,  by  men 
of  the  locality.  The  local  machinery  was  there- 
fore naturally  called  upon  to  furnish  men  for 
the  "juries."  As  a  result  the  representative 
elements  of  government  were  brought  into 
direct  connection  with  the  assessment  of  taxa- 
tion, which  was  a  step  towards  participation 
in  the  granting  of  taxes.  Besides  this  the  itin- 
erant justices  who  took  the  inquests  sat  in  the 
county  courts  and  formed  another  link  which 
facilitated  the  transfer  of  the  principles  of 
representation  from  local  to  national  govern- 
ment.* Enough  has  been  said  in  a  previous 
chapter  to  make  clear  the  influence  which 
the  landed  man  has  exerted  in  this  matter  of  the 
inquests.  It  only  needs  to  be  constantly  borne 
in  mind  that  both  the  local  fiscal  "recogni- 
tion" and  the  growth  of  the  power  of  the  Great 
Council  had  to  do  with  taxation.  When  the 
representative  element  joined  the  element  of 
consent  parliament  came  about.  Before  we 
come  to  their  union,  however,  it  will  be  well 
to  note  a  few  illustrations  of  the  firm  place 

*  Stubbs,  Const.  Hist.  §  127. 


THE  BEGINNINGS  OF  PARLIAMENT        143 

which  the  elective  principle  won  in  the  jury 
system  and  in  the  assessment  of  taxes  during 
the  end  of  the  twelfth  and  the  beginning  of 
the  thirteenth  centuries. 

The  jury  for  the  Grand  Assize  was  elected 
by  four  knights  summoned  for  that  purpose 
by  the  sheriff.*  The  grand  jury  was  in  1194 
purely  elective.  Four  knights  were  elected 
in  each  county,  who  upon  their  oath  chose 
two  lawful  knights  of  each  hundred,  and  those 
two  in  turn  elected  ten  knights  of  each  hun- 
dred, or  if  knights  were  lacking,  lawful  and 
free  men,  who  with  them  made  the  jury  of 
twelve.^  This  grand  jury,  among  other  things, 
elected  the  recognitors  for  all  the  assizes.'  In 
1198,  elections  for  the  Grand  Assize  were  in 
the  full  county  court.*  Magna  Carta  provided 
that  the  assizes  should  be  taken  quarterly  in 
the  county  court  before  two  justices  sent  by 
the  king  and  four  knights  chosen  by  the  county." 

*  Glanvill,  De  Leg,  Ang.  lib.  ii,  c.  12,  in  Stubbs,  Sel.  Chart. 
(8th  ed.)  161. 

^  Fonna  Frooedendi  in  Flacitis  Coronae  Regis,  in  Stubbs, 
Set.  Chart.  (8th  ed.)  259. 
»  Ibid.  Art.  2. 

*  Roger  de  Hoveden,  ir,  61,  in  Stubbs,  Sd.  Chart.  (8th  ed.) 
258. 

»  Mag.  Cart.  c.  18.    Cf.  Stubbs,  Cmd.  Hist.  §  164. 


144        THE  BEGINNINGS  OF  PARLIAMENT 

Coming  now  to  inquests  which  were  fiscal 
rather  than  judicial,  we  find  that  in  1181  Henry 
II  determined  the  liability  of  his  subjects  to 
keep  arms  for  service  in  the  militia  by  means 
of  the  oath  before  his  justices  of  "  lawful  knights 
or  other  free  and  lawful  men  of  the  hundred 
and  boroughs."  *  We  do  not  know  that  these  "ju- 
rors" were  elected,  but  at  any  rate  another  point 
of  contact  was  offered  between  national  affairs 
and  the  representative  system  of  the  local  courts. 
The  Saladin  Tithe  of  1188  afforded  another 
opportunity  to  make  use  of  the  inquest.  In 
cases  where  any  were  suspected  of  not  vol- 
untarily returning  the  proper  amount,  the 
rating  was  to  be  settled  by  the  oath  of  four  or 
six  lawful  men  elected  (we  are  not  told  how) 
from  the  parish.'  In  1194  the  itinerant  jus- 
tices were  aided  in  determining  the  king's  fiscal 
rights  by  a  jury  of  "twelve  lawful  knights  or 
free  and  lawful  men"  elected  by  the  knights 
of  the  shire.'  Four  years  later,  to  collect  a 
carucage,  "the  king  sent  through  each  county 
a  clerk  and  a  knight,  who,  with  the  sheriff  of 

*  Assize  of  Arms,  Art.  9,  in  Stubbs,  Set.  Chart.  (8th  ed.)  154. 
'  Benedict,  ii,  31,  in  Ibid.  160. 

'  Forma  Procedendi,  Art.  23,  in  Stubbs,  Set.  Chart.  (8th  ed.) 
259. 


THE  BEGINNINGS  OF  PARLIAMENT  145 

the  county  to  which  they  were  sent  and  with 
lawful  knights  elected  for  this  purpose,  caused 
to  appear  before  them  (1)  the  stewards  of  the 
barons  of  that  county,  (2)  from  each  town- 
ship the  lord  or  the  bailiff  of  the  township  and 
the  reeve  with  four  lawful  men  of  the  town- 
ship, whether  free  or  villein,  and  (3)  from  the 
hundred  two  of  the  more  lawful  knights;" 
which  men  took  oath  to  a  new  Domesday  In- 
quest.* 

By  the  year  1220  a  great  advance  in  the  no- 
tion of  popular  election  and  representation 
was  made  apparent  by  the  method  of  collect- 
ing a  carucage,  which  was  by  two  knights 
chosen  in  the  full  assembly  of  the  shire  and 
"  by  the  will  and  counsel  of  all  of  the  county."  ^ 
Five  years  later  a  fifteenth  was  assessed  and 
collected  by  a  system  combining  all  previous 
methods.  The  taxpayer  first  made  oath  to  the 
value  of  his  property,  and,  in  case  of  dispute, 
a  jury  was  called  in.  The  money  was  collected 
by  the  reeve  and  four  men  of  each  township 
and  paid  by  them  to  four  knights  elected  in 
the  hundred,  who  in  turn  passed  it  on  to  the 
agents  of  the  king.'    Again  in  1232  a  fortieth 

*  Roger  de  Hoveden,  iv,  46,  in  Stubbs,  Sd.  Chart,  (8th  ed.)  256. 
2  Stubbs,  Set.  ChaH.  (8th  ed.)  352.  "  Ibid.  355. 


146        THE  BEGINNINGS  OF  PARLIAMENT 

was  assessed  in  each  township  by  four  men 
and  the  reeve  on  oath.  The  four  men,  who 
were  to  be  of  the  better  and  more  lawful  kind, 
were  elected.  This  tax  was  granted  by  the 
"archbishops,  bishops,  abbots,  priors,  clergy, 
earls,  barons,  knights,  freemen  and  villeins.** 
Either  the  freeholders  and  villeins  were  con- 
sulted in  the  county  court  or  the  lords  were 
taken  to  represent  their  tenants  in  the  Great 
Council.  In  either  case  the  theory  of  consent 
was  passing  down  to  the  lower  ranks  of  the 
territorial  scale;  while  if  the  latter  be  true,  the 
theory  of  representation  was  gaining  ground 
in  the  national  assembly.*  Even  although  the 
only  significance  of  the  tax  were  its  assess- 
ment by  elected  men,  that  was  much;  for  the 
representatives  of  the  people  were  stating  the 
extent  of  their  liability  to  pay,  and  that  is  very 
closely  related  to  consent  to  any  Uability  to 
be  taxed  at  all.*  In  connection  with  the  thirtieth 
of  12S7  we  find  the  lords  acting  in  the  grant 
'pro  86  et  suis  villanis,  in  a  representative  capac- 
ity. This  time  the  aid  was  assessed  by  four 
lawful  men  elected  by  each  township.' 

*  Stubbs,  Sd.  Chart.  (8th  ed.)  360. 
'  1  Palgrave,  Eng.  Com.  275,  276. 
«  Stubbs,  Sel.  Chart.  (8tli  ed.)  366. 


THE  BEGINNINGS  OF  PARLIAMENT        147 

These  repeated  uses  of  the  elective  and 
representative  principles  in  the  assessment  and 
collection  of  national  taxes  were  rapidly  pre- 
paring the  way  for  a  parliament  in  which  the 
whole  people  would  have  a  share.  An  assem- 
bly analogous  to  parliament  already  existed 
in  the  shire  court  which,  with  its  "  archbishops, 
bishops,  abbots,  priors,  earls,  barons,  knights, 
and  all  free  tenants  of  the  whole  county,  to- 
gether with  the  four  men  and  the  reeve  from 
each  township  and  the  twelve  lawful  men 
from  each  borough,"  contained  all  the  ele- 
ments of  the  later  national  legislature.  All  of 
them,  it  is  to  be  noticed,  were  landed  men, 
even  the  "lawful  man"  had  of  necessity  his 
real  property.  Yet  these  elements  were  "dis- 
tinctly Teutonic  in  origin,  and  not  a  creation 
of  feudalism."  Thus  had  the  ancient  national 
institutions  survived  in  the  township  and  shire 
in  order  that  now,  brought  into  contact  with 
the  central  administration  by  the  fiscal  busi- 
ness upon  which  the  king's  oflBcers  went  into 
the  shire,  they  might  become  the  groundwork 
of  the  new  national  institution.* 

Already  the  elective  and  representative 
principles,  first  observed  to  reach  out  towards 

*  Stubbs,  Sd.  ChaH.  (8th  ed.)  358. 


148       THE  BEGINNINGS  OF  PARLIAMENT 

national  affairs  in  the  matter  of  taxation,  had 
shown  themselves  in  other  branches  of  na- 
tional activity.  In  1198  coroners  began  to  be 
elected  in  the  counties  to  keep  the  pleas  of 
the  crown.*  Magna  Carta  provided  that  all 
bad  customs  of  the  forests  should  be  inquired 
into  in  each  county  by  twelve  sworn  knights 
of  the  same  county,  who  should  be  elected  by 
the  probi  homines  of  the  county.^  A  writ  is 
extant  calling  for  the  election,  by  the  knights 
and  probi  homines  of  the  county,  of  four  of 
the  more  lawful  and  discreet  men  to  inquire 
into  the  disputed  interpretation  of  some  ar- 
ticles of  the  Great  Charter.  Such  an  inquest 
was  strictly  neither  judicial  nor  financial,  but, 
as  Bishop  Stubbs  remarks,  is  more  of  the  char- 
acter of  political  deliberation  than  anything 
hitherto  laid  before  a  jury.' 

The  actual  entrance  of  the  representatives 
of  the  small  landowners  into  the  national  as- 
sembly was,  however,  deferred  until  the  theory 
of  consent  became  a  somewhat  more  estab- 
lished practice.  But  before  that  came  about, 
there  were  several  Great  Councils  attended 
by  representatives  of  a  part  of  the  people.    As 

*  Forma  Procedendi,  Art.  20,  in  Ibid.  259. 

'^  Mag.  CaH.  c.  48.        »  Stubbs,  Sd.  ChaH.  (8th  ed.)  357. 


THE  BEGINNINGS  OF  PARLIAMENT        149 

these  served  as  important  precedents  for  more 
perfect  representation,  we  must  briefly  look 
at  them.  We  begin  with  that  assembly  called 
together  by  the  justiciar  at  S.  Alban's  upon 
August  4,  1213,  a  date  worthy  of  memory  in 
the  history  of  liberty.  It  was  attended  by  the 
usual  bishops  and  barons,  and  in  addition  by 
the  reeve  and  four  men  of  each  township.  These 
last-named  were  present  to  give  inquest  as 
to  the  value  of  the  lands  for  which  the  church 
demanded  restitution  at  the  hands  of  the  king. 
The  township  men  had  not  yet  passed  beyond 
the  stage  of  the  inquest,  but  it  was  through 
the  inquest  that  they  won  a  place  in  legisla- 
tion, and  now  they  made  a  great  leap  towards 
the  desired  goal  by  making  an  inquest  in  the 
national  assembly.  Furthermore  larger  ques- 
tions than  the  assessment  of  damages  were 
brought  before  the  whole  body,  and  the  repre- 
sentative men  were  treated  as  a  part  of  the 
council  for  the  hearing  of  the  grievances  with 
which  the  faithlessness  of  the  king  had  bur- 
dened the  whole  nation.*  Popular  representa- 
tion acquired  another  precedent  with  the  writ 
of  John  dated  November  7,  1213,  and  sum- 
moning to  Oxford  a  council  in  which  the 
*  Stubbs,  Const.  Hist.  §  154. 


150       THE  BEGINNINGS  OF  PARLIAMENT 

barons  and  four  discreet  men  of  the  shire  were 
to  meet  "  to  speak  with  us  concerning  the  busi- 
ness of  our  realm."  *  Whether  or  not  the  as- 
sembly actually  convened,  we  do  not  know.' 
For  another  instance  of  county  representa- 
tion we  have  to  wait  for  over  forty  years.  The 
kingdom  was  in  1253  left  in  the  care  of  the 
queen  and  Earl  Richard,  while  Henry  III  made 
an  expedition  to  Gascony.  Money  was  needed 
for  the  campaign,  and  the  regents  called  to 
council  the  prelates  and  magnates,  who  for 
themselves  promised  an  aid.  So  strong  had 
become  the  principle  of  consent  that  even  the 
prelates  would  not  answer  for  the  rest  of  the 
clergy,  who  were  not  represented.  They  did 
indeed  express  the  opinion  that  the  clergy  might 
follow  their  example  if  the  tenth  granted  for 
the  crusade  were  given  up  or  postponed,  but 
this  was  probably  not  said  by  them  as  repre- 
sentatives of  the  lesser  clergy.  Likewise  the 
barons  consented  to  go  to  Gascony,  but  would 
not  answer  for  the  rest  of  the  laity,  who,  how- 
ever, might  go  if  the  charters  were  confirmed. 
In  this  state  of  affairs  it  seemed  necessary  for 
the  regents  to  treat  with  those  who  had  au- 

1  Stubbs,  Sd.  Chart.  (8th  ed.)  286. 

2  Stubbs,  C(mst.  Hist.  §  154. 


THE  BEGINNINGS  OP  PARLIAMENT        151 

thority  to  bind  the  lesser  subjects.  Hence  there 
was  convened  at  Westminster  on  April  26, 
1254,  a  Great  Council,  to  which  were  sum- 
moned two  knights  to  be  chosen  by  each  county 
court  and  representatives  of  the  clergy  of  each 
diocese,  who  were  to  report  how  large  an  aid 
their  constituents  were  able  to  give.  The  re- 
iteration of  grievances  was  the  only  thing  which 
the  assembly  accomplished,  but  the  very  meet- 
ing of  such  a  body  was  full  of  promise  for  the 
future.^ 

The  next  three  or  four  years  were  marked 
by  an  unceasing  struggle  between  the  king  and 
the  barons.  Foreign  favorites  received  princely 
gifts  from  the  funds  which  Henry  should  have 
spent  for  public  purposes.  The  war  in  Gas- 
cony  had  been  financially  disastrous;  the  king 
was  a  bankrupt.  Then  the  pope  conceived  the 
idea  of  selling  the  crown  of  Sicily  to  Henry, 
who  was  intimidated  into  agreeing  to  take  it 
for  his  second  son  Edmund.  Not  only  was 
a  further  debt  of  140,000  marks  thus  contracted, 
but  the  king  was  also  plunged  into  another 
war  and  the  nation  put  in  danger  of  the  influx 
of  more  aUens.   Henry's  cry  became  more  than 

»  Stubbs,  Const.  Hist.  §  175;  Stubbs,  Sd.  Chart.  (8th  ed.) 
875. 


152        THE  BEGINNINGS  OF  PARLIAMENT 

ever  for  money,  while  more  than  ever  the  barons 
resisted.  For  the  first  time  on  record  the  mag- 
nates in  1255  refused  an  aid  on  the  ground  that 
they  had  not  been  summoned  in  the  manner 
prescribed  by  Magna  Carta.  The  king  had 
the  support  of  some  of  the  greatest  earls,  as 
well  as  of  his  prosperous  alien  friends,  who 
enjoyed  the  power  which  castles  and  revenues 
and  the  infringement  of  law  gave;  but  they 
alone  could  not  maintain  the  king,  who  needed 
the  financial  aid  of  the  large  body  of  unor- 
ganized owners  of  taxable  property.  So  it  came 
about  that  in  1258  the  refusal  of  the  Great 
Council  to  grant  the  king's  demand  for  money 
except  upon  terms  of  reform  forced  Henry 
for  the  time  to  put  himself  in  the  hands  of  the 
barons.  A  committee  of  twenty-four,  haK  from 
the  royal  council  and  half  chosen  by  the  barons, 
were  to  enforce  temporary  reforms.  Mean- 
while the  assembly  adjourned  pending  the 
formulation  of  a  scheme  for  government. 

When  the  council  met  at  Oxford  on  the  11th 
of  June,  it  was  as  a  full  assembly  of  the  baron- 
age and  higher  clergy,  the  former  in  arms.  Called 
by  Henry's  followers  the  Mad  Parliament,  it 
had  the  courage,  whether  wisely  or  not,  to  make 
constitutional  demands  far  in  advance  of  the 


THE  BEGINNINGS  OF  PARLIAMENT        153 

times.  These  demands,  formulated  in  the  Pro- 
visions of  Oxford,  required  that  all  public  acts 
of  the  king  be  under  the  restraint  of  a  coun- 
cil of  fifteen,  chosen  by  four  of  the  committee 
of  twenty-four,  two  elected  from  the  king's 
half  of  that  committee  by  the  barons'  half,  and 
two  from  the  barons'  twelve  by  the  king's 
twelve.  This  council  of  fifteen,  besides  exer- 
cising a  control  over  administrative  affairs 
which  was  not  to  be  confirmed  as  a  right  of 
the  people  for  five  hundred  years,  and  then 
only  by  indirection,  was  to  be  given  a  legis- 
lative power  of  an  unfortunate  sort.  Three 
times  a  year  it  was  to  meet  in  parliament  twelve 
others  chosen  by  the  barons  to  discuss  com- 
mon business  in  behalf  of  the  whole  com- 
munity.* It  was  thus  a  reproach  to  the  new 
system  that  it  was  oligarchic  and  left  without 
recognition  the  principle  of  representation  which 
had  been  so  long  developing  itseff.  Such  an 
omission  was  a  source  of  immediate  weakness, 
for  although  the  subject's  right  to  be  heard 
was  partially  vindicated,  the  Provisions  were 
not  a  complete  expression  of  the  notion  of  con- 
sent, which  was  already  far  outstripping  the 

*  For  the  documents  relating  to  the  Provisions,  see  Stubbs, 
Sd.  ChaH.  (8th  ed.)  378  et  seq.  Cf.  Stubbs,  Canst.  Hist.  §  176. 


154        THE  BEGINNINGS  OF  PARUAMENT 

idea  of  1215  that  only  the  barons  had  rights 
in  the  granting  of  taxes. 

The  barons,  or  a  considerable  portion  of 
them,  were  dilatory  in  carrying  out  the  reforms. 
Those  who  had  joined  the  movement  against 
the  king  for  purely  selfish  motives  were  sat- 
isfied with  the  mere  gaining  of  their  private 
ends.  This  left  the  knights,  the  landowners 
next  below  the  baronage,  still  suffering  wrongs. 
They  found  a  friend  in  Edward,  the  king's  son, 
who  urged  their  rights  before  the  council,  with 
the  result  that  some  of  the  reforms  were  for- 
warded. Associated  with  Edward  in  the  cause 
of  liberty  for  the  lower  ranks  was  Simon  de 
Montfort,  shortly  to  become  the  leader  of  the 
opposition  to  the  king  in  the  struggle  of  Hberty. 
The  new  government  began  to  break  up,  but 
the  king  did  not  find  himself  able  to  have  his 
own  way.  Each  party  distrusted  the  other  and 
prepared  for  war. 

It  was  imder  such  conditions  that  the  chiefs 
of  the  crumbling  provisional  government,  Si- 
mon de  Montfort,  the  Earl  of  Gloucester,  and 
the  Bishop  of  Worcester,  summoned  to  S. 
Alban's  the  assembly  of  1261,  which  marks 
the  third  occasion  when  knights  (this  time 
three  from  each  shire)  were  invited  to  attend 


THE  BEGINNINGS  OF  PARLIAMENT        155 

a  national  council.  De  Montfort,  as  leader  of 
the  progressive  barons,  probably  saw  in  this 
a  means  to  strengthen  his  party  for  the  armed 
conflict  which  seemed  imminent.  The  knights 
had  much  in  common  with  the  barons,  for  as 
landowners  they  had  an  interest  in  the  move- 
ment of  the  day,  which  was  very  like  that  of 
the  tenants-in-chief  in  kind,  although  in  de- 
gree it  was  less.  An  amalgamation  of  the  two 
bodies  meant  present  power  and  future  per- 
manence in  the  legislative  department.  The 
king  feared  the  present  power  and  therefore 
ordered  the  sheriffs  to  send  the  knights,  not 
to  S.  Alban's,  but  to  Windsor,  where  he  pro- 
posed to  treat  for  peace.  No  immediate  gain 
came  from  either  summons,  but  the  king  had 
put  himseK  upon  record  as  approving  a  recog- 
nition of  the  knights  which  the  barons  had 
conceded.  There  was  added  another  precedent 
to  representation  in  parKament  and  to  the  union 
therein  of  all  the  estates.* 

Edward  became  reconciled  to  his  father, 
a  truce  was  obtained  and  settlement  of  the 
differences  between  Simon  and  the  king  sought 
by  arbitration.  Simon  himself  went  abroad, 
and  for  a  time  open  war  was  delayed.  Upon 
»  Stubbs,  Canst.  Hist.  §  176. 


156        THE  BEGINNINGS  OF  PARLIAMENT 

De  Montfort's  return  and  the  failure  of  arbi- 
tration, matters  came  soon  to  a  head.  Simon 
demanded  a  reconfirmation  of  the  Provisions 
of  Oxford  and  upon  the  king's  refusal  began 
war.  Henry  was  forced  to  a  reluctant  promise 
to  observe  the  Provisions,  but  Edward  held 
out  for  a  time.  Then  arrangements  were  finally 
made  to  refer  the  whole  matter  to  Louis  IX 
of  France.  The  arbitrator  gave  a  judgment 
annulUng  the  Provisions  and  leaving  Henry 
his  former  freedom  to  appoint  ministers,  coun- 
cil, and  sheriffs,  as  well  as  to  employ  aliens, 
whose  favors  political  and  financial  at  the  hands 
of  the  king  had  been  one  fruitful  source  of  dis- 
content.^ Such  a  decision  was  not  to  be  borne. 
Open  war  ensued,  and  at  the  battle  of  Lewes, 
in  May,  1264,  Henry  became  the  barons'  pris- 
oner. To  the  assembly  which  was  immediately 
convened  by  De  Montfort  in  the  name  of  the 
king,  to  determine  a  new  scheme  of  govern- 
ment, were  summoned  four  knights  of  the  shire 
elected  in  the  county  court.  Another  parlia- 
ment in  the  early  part  of  1265  completed  the 
arrangements  for  the  new  order  of  things,  and 
this  marks  the  real  beginning  of  the  modem 
English  legislature.    To  it  were  summoned  all 

*  Stubbs,  Const.  Hist.  §  176. 


THE  BEGINNINGS  OF  PARLIAMENT        157 

the  bishops,  abbots,  and  barons  who  were  not 
hostile  to  the  new  order  of  things,  two  knights 
of  each  shire  and  two  representatives  of  each 
borough  and  city.  There  was  no  order  for  the 
election  of  the  representative  members,  but 
the  custom  of  election  was  too  well  established 
not  to  be  observed  on  this  occasion.  Thus  for 
the  first  time  we  see  combined  the  old  com- 
mune  concilium  with  the  elected  representa- 
tives of  the  small  freeholders  and  burgesses.  In 
a  body  of  such  model  all  landed  men  except  the 
lesser  clergy  had  some  voice,  direct  or  indirect. 
The  victory,  although  important  in  ultimate 
results,  was  short-lived.  De  Montfort  was  de- 
feated and  slain  in  battle  the  same  year,  Henry 
was  freed,  the  baronial  party  reduced.  But 
remnants  of  the  victory  remained,  for  after 
the  subjugation  of  the  barons  Henry  yet  found 
it  wise  to  summon  the  Parliament  of  Marl- 
borough (1267)  and  to  concede  all  the  Pro- 
visions of  Oxford  except  the  demands  for  the 
appointment  of  ministers  by  the  council  and 
the  election  of  sheriffs.  It  is  even  deemed  prob- 
able that  the  knights  of  the  shire  participated 
in  these  proceedings,  although  the  representa- 
tives of  town  and  city  did  not.*    A  power  once 

*  Stubbs,  Canst.  Hist.  §  177.    Cf.  the  writs  in  Stubbs,  Set. 
Chart.  (8th  ed.)  411,  415. 


158        THE  BEGINNINGS  OF  PARLIAMENT 

exercised  by  the  people  at  the  expense  of  the 
sovereign  can  never  be  fully  recovered  to  the 
prerogative.  A  great  assembly  in  1269  was 
attended  by  the  more  powerful  men  of  the  cities 
and  boroughs.* 

The  baronial  party  was  completely  routed, 
and  in  a  position  to  offer  no  more  resistance 
during  Henry's  last  years.  When  Edward  I  suc- 
ceeded to  the  throne  in  1272,  England  became 
blessed  with  a  king  who,  while  claiming  the 
right  to  sovereign  authority,  had  yet  some  sym- 
pathy with  the  people.  Edward  was  a  strong 
king,  but  his  strength  did  not  He  solely  in  the 
firm  hand  with  which  he  carried  out  his  own 
purposes;  he  was  equally  steadfast  in  hold- 
ing faith  when  his  subjects  forced  from  him 
concessions  of  sovereignty.  He  became  king 
of  the  whole  people,  without  opposition  or  even 
question,  and  received  in  1273  the  allegiance 
of  all  his  subjects  through  the  oath  of  a  con- 
vention composed  not  only  of  the  prelates  and 
barons,  but  also  of  four  knights  from  each 
shire  and  four  citizens  of  each  city.  This  con- 
vention also  confirmed  the  provision  which, 
pending  Edward's  return  from  the  crusade, 
the  royal  council  had  made  for  the  government 

»  Stubbs,  Const.  Hist.  §  178. 


THE  BEGINNINGS  OF  PARLIAMENT        159 

of  the  nation  under  the  regency  of  the  Arch- 
bishop of  York.* 

The  first  general  parHament  of  Edward  I, 
in  April,  1275,  enacted  the  Statute  of  West- 
minster the  First,  whose  preamble  speaks  of 
"the  community  of  the  realm  thither  sum- 
moned." '  Whether  or  not  we  are  to  infer  that 
representatives  of  the  shires  and  townships 
were  members  of  the  assembly,  the  statute  does 
certainly  illustrate  the  hold  which  the  elective 
principle  had  gained.  In  it  we  read,  "Because 
elections  ought  to  be  free,  the  king  command- 
eth  upon  great  forfeiture  that  no  man  by  force 
of  arms,  nor  by  malice  or  menacing,  shall  dis- 
turb any  to  make  free  election."  '  The  statute 
covers  a  very  wide  field,  promising  to  all  com- 
mon right;  forbidding  excessive  amercements, 
abuses  of  wardship,  irregular  demands  for 
feudal  aids;  reviewing  the  inquest  system,  the 
Provisions  of  Oxford,  and  other  important 
things.  The  price  of  the  legislation  was  a  grant 
of  custom:  half  a  mark  on  each  sack  of  wool 
or  three  hundred  woolfells,  one  mark  on  each 
last  of  leather  going  out  of  the  country.    Wool 

*  Ann.  Win.  113,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  429. 
2  Cf.  Patent  RoU,  July  24,  1276,  in  Stubbs,  Sd.  Chart.  (8th 
ed.)  430.  '  Stat.  West.  I,  c.  v,  in  Ibid.  450. 


160       THE  BEGINNINGS  OF  PARLIAMENT 

had  long,  as  the  staple  product  of  England, 
been  the  desired  object  of  taxation,  but  never 
before  had  there  been  a  legislative  enactment 
regarding  it.  Henceforth  it  became  an  im- 
portant factor  in  fiscal  affairs.* 

Later  in  the  same  year  of  1275,  during  the 
month  of  October,  another  magnum  parlia- 
mentum  made  laws  touching  the  Jews,  and 
granted  a  subsidy  of  a  fifteenth,  and  to  this 
parliament  were  surely  summoned  two  elected 
knights  of  each  county .**  For  eight  years  Ed- 
ward got  along  with  only  this  one  general  grant. 
A  scutage  was  taken  in  1277.  In  a  time  of  such 
light  taxation  there  was  little  opportunity  for 
the  representative  system  to  confirm  itself. 
But  the  king  did  need  money,  and  in  order  to 
get  it  he  had  at  least  to  recognize  the  principle 
of  consent.  In  his  reluctance  to  go  to  parlia- 
ment for  it,  he  made  separate  agreements  with 
individuals  and  communities  for  grants  and 
subsidies."  The  returns  not  proving  suflicient, 
Edward  next  called  two  provincial  councils, 
one  for  York  and  the  other  for  Canterbury. 

*  Stubbs,  Sd,  Chart.  (8th  ed.)  448-*52. 
'  Ann.  Winton,  119,  and  Close  Rolls,  Oct.  24,  in  Ibid.  430; 
Stubbs,  Cmust.  Hist.  §  214. 
"  Writ  No.  I  in  Stubbs,  Sd.  ChaH.  (8th  ed.)  464. 


TEEE  BEGINNINGS  OF  PARLIAMENT        161 

Both  clergy  and  laity  attended  each,  while 
four  knights  of  each  shire  and  two  men  of  each 
city,  borough,  or  market  town  were  also  sum- 
moned, as  were  all  freeholders  capable  of  bear- 
ing arms  and  holding  more  than  a  knight's 
fee.* 

These  events  were  in  1282.  Again  there  was 
no  further  call  for  a  general  tax  for  several 
years,  although  for  the  trial  of  David  of  Wales 
the  king  in  1283  gathered  an  assembly  to  which 
representatives  of  shire  and  town  were  sum- 
moned.'' From  1286  until  1289,  the  king  was 
in  France,  with  his  chancellor.  In  the  latter 
year  he  sent  over  asking  the  magnates  for  an 
aid.  The  answer  was  that  none  should  be  forth- 
coming until  the  king  returned.  Edward  has- 
tened back  and  heard  the  complaints  of  ill-doing 
on  the  part  of  the  judges  in  the  chancellor's 
absence.  Some  of  the  judges  were  removed, 
and  then  came  the  three  parliaments  of  1290, 
to  the  second  of  which  two  or  three  elected 
knights  of  each  shire  were  summoned.* 

One  of  the  acts  of  the  year,  passed  before 

*  Stubbs,  Sd.  Chart.  (8th  ed.)  465. 
2  Stubbs,  Cmst.  Hist.  §  179. 

^  Ann.  Osney,  316,  318;  Ann.  Waverl.  408,  in  Stubbs,  Sel. 
ChaH.  (8th  ed.)  434-435. 

*  Writ  No.  n,  in  Ibid.  477. 


162       THE  BEGINNINGS  OF  PARLIAMENT 

the  knights  came  to  the  assembly,  was  the 
Statute  Quia  Emptores,  designed  to  avoid 
the  process  of  subinfeudation,  by  which  free 
tenants  sold  lands  in  such  manner  that  the 
purchasers  held  by  services  due  to  the  sellers. 
The  lord  of  the  seller  was  thus  often  deprived 
of  the  escheat,  wardship,  and  marriage  of  the 
lands  sold,  "which  things  indeed  seemed  very 
hard  and  extreme  to  the  magnates  and  other 
lords."  Hence  the  king,  "at  the  instance  of 
his  magnates,"  granted  that  it  should  be  law- 
ful for  lands  to  be  sold  only  in  such  manner 
that  the  grantee  should  hold  them  by  the  same 
services  and  customs  by  which  his  grantor  had 
held.*  This  act  was  the  supplement  to  the 
Statute  of  Mortmain  in  which  eleven  years 
previous  the  king  had  decreed  that,  because 
"lords  in  chief  lost  their  escheats,"  estates 
should  not  be  put  into  the  hands  of  the  church 
so  as  to  free  them  from  services.^  These 
statutes  —  ordinances,  rather,  for  they  were 
not  acts  of  parliament  —  originated,  indeed, 
in  the  greed  of  the  king  and  of  the  great  land- 
lords, but  they  yet  had  a  wonderfully  good  in- 
fluence upon  the  liberties  of  England,  which 
merits  passing  comment.     Not  only  did  the 

*  Stubbs,  Sd.  Chart.  (8th  ed.)  478.  ^  j^[^  453. 


THE  BEGINNINGS  OF  PARLIAMENT        163 

doing  away  with  subinfeudation  overcome  some 
of  the  destructive  forces  of  feudalism;  it  also 
made  the  lot  of  the  humble  people  more  bear- 
able by  avoiding  the  multiplication  of  mesne 
lords  between  sovereign  and  villein.* 

The  next  and  final  steps  towards  a  repre- 
sentative parliament  came  in  1294  and  1295, 
and,  as  might  be  expected,  were  the  results 
of  further  attempts  to  raise  money.  Suddenly 
plunged  into  a  war  with  France,  Edward  found 
it  imperative  in  the  former  year  to  have  sup- 
plies without  delay.  He  therefore  made  some 
arbitrary  seizures,'  but  recognized  the  con- 
stitutional procedure  by  summoning  the  pre- 
lates to  meet  in  September  at  Westminster, 
whither  he  also  called  elected  representatives 
of  the  lower  clergy .^  In  November  another 
convocation  was  had  at  Westminster,  to  which 
were  summoned  the  magnates  and  four  knights 
to  be  elected  in  each  county  court.* 

To  the  French  war  was  added  a  Welsh 
rebellion,  and  Edward's  wants  became  pro- 
portionally grievous.  A  Great  Council  held  in 

*  Stubbs,  Const.  Hist.  §  264. 

'  Chron.  W.  de  Hemingburgh,  ii,  53, 54,  in  Stubbs,  Sel.  Chart. 
(8th  ed.)  437. 
'  Writ  No.  I,  in  Ibid.  480. 

*  Writ  No.  II,  in  Ibid.  481. 


164        THE  BEGINNINGS  OF  PARLIAMENT 

the  summer  of  1295  does  not  seem  to  have 
tided  affairs  over  for  long,  and  in  the  late  au- 
tumn he  adopted  the  expedient  of  a  model 
parliament.  Variously  constituted  bodies  had 
been  tried  previously,  as  occasion  demanded. 
Once  *  the  knights  of  the  shire  and  repre- 
sentatives of  the  cities  and  boroughs  were  both 
summoned;  sometimes  only  the  knights  were 
called;  again  both  of  them  were  omitted  and 
the  barons  granted  aids  in  behalf  of  the  com- 
monalty, as  well  as  of  themselves.  Sometimes 
the  king  treated  separately  with  the  different 
estates,  —  clergy,  lords  and  commons,  —  and 
obtained  grants  from  each.  The  period  had 
been  one  of  transition  and  of  doubt,  and  no 
definite  system  had  been  evolved  beyond  the 
principle  of  consent.  Separate  dealing  with 
the  estates  or  with  the  counties  or  boroughs 
was  cumbersome  and  unsatisfactory,  while 
the  returns  were  insufficient.  In  the  emer- 
gency of  war,  Edward  I  now  needed  the  actual 
common  counsel  of  the  whole  realm,  and  he 
needed  as  well  an  adequate  grant  of  money. 
A  representative  parUament  combining  all  the 
elements  previously  used,  and  able  to  tax  the 
whole  nation,  was  his  refuge.    Hence  the  writs 

*  In  1265,  when  the  lesser  clergy  were  unrepresented. 


THE  BEGINNINGS  OF  PARLIAMENT        165 

of  September  and  October,  1295,  summoned 
(1)  the  prelates  and  the  representatives  of  the 
lesser  clergy,^  (2)  the  barons,'  (3)  two  elected 
knights  from  each  shire,  two  elected  citizens 
of  each  city  and  two  elected  burgesses  of  each 
borough,  who  should  have  power  to  act  in  be- 
half of  their  communities."  This  was  the  be- 
ginning of  the  perfect  parliament.  Apparently 
the  aid  granted  was  discussed  by  each  of  the 
three  estates  separately,  for  each  voted  a  dif- 
ferent fraction  of  their  movables,*  but  the  com- 
plete representation  of  all  the  landed  men  of 
the  nation  above  a  modest  rating  was  obtained, 
and  more  perfect  unity  was  the  natural  and 
necessary  result.  From  that  time  extends  an 
almost  continuous  succession  of  parliaments 
of  the  De  Montfort  type,  with  representatives 
of  the  three  estates,  clergy,  barons  and  com- 
mons. 

A  backward  glance  over  the  ground  just 
traversed  will  serve  to  impress  us  afresh  with 
the  intimate  relations  of  the  landed  men  to 
the  movement  towards  parliament.      Let  us 

*  Writ  No.  n,  in  Stubbs,  Sel  ChaH.  (8th  ed.)  484. 
2  Writ  No.  in,  in  Ibid.  485. 

"  Writ  No.  IV,  in  Ibid.  486. 

*  Writ  No.  V,  in  Ibid.  486. 


166       THE  BEGINNINGS  OF  PARLIAMENT 

look  at  the  chief  elements  which  combined  to 
make  up  the  institution.  First  in  point  of  time 
was  that  principle  of  popular  government  found 
in  the  Germanic  tribal  assembly.  This  was  a 
seed  of  such  marvelous  vitality  that  it  lived 
through  the  migration  to  England  and  the  rise 
of  kings.  The  process  of  amalgamation,  while 
neglecting  this  principle  in  the  national  struc- 
ture, left  it  fully  operative  in  the  shire,  which 
corresponded  somewhat  roughly  to  the  old 
tribal  limits.  Locally  the  principle  persisted 
for  centuries,  a  right  enjoyed  by  the  free  land- 
owner. Quite  independent  of  this  element, 
there  grew  up  in  the  nation  a  theory  that  the 
great  landowners,  as  having  the  largest  inter- 
ests, should  consent  to  taxation.  It  required 
centuries  of  growth  to  estabHsh  the  principle 
as  a  theory,  but  just  as  it  was  becoming  fixed, 
there  arose  that  system  of  inquests,  designed 
to  secure  the  fiscal  rights  of  the  king  against 
the  landowners,  which  brought  national  tax- 
ation into  close  touch  with  the  representative 
local  institutions.  Concurrently  came  the  ex- 
tension of  the  principle  of  consent  down  the 
territorial  scale  to  the  smaller  freeholders  who 
enjoyed  the  elective  franchise  and  the  right 
of  representation  in  shire  affairs.    Then  these 


THE  BEGINNINGS  OF  PARLIAMENT        167 

elements  of  election,  representation,  and  con- 
sent, brought  together  by  force  of  the  king's 
need  and  the  landowners*  pressure  for  recog- 
nition, joined  to  make  parliament. 

Once  parliament  was  firmly  constituted, 
it  promptly  established  its  primary  right,  su- 
preme power  in  taxation.  Like  nearly  every 
instance  of  encroachment  upon  prerogative, 
this  happened  because  the  king  wanted  money. 
A  full  parUament  of  all  the  estates  was  held 
in  1296  at  S.  Edmund's  to  raise  money  to  re- 
cover Gascony.  As  was  the  case  the  year  be- 
fore, the  three  estates  voted  separately,  the 
barons  and  knights  giving  a  twelfth,  the  cities 
and  boroughs  an  eighth.  But  the  clergy,  for- 
bidden by  a  papal  bull  to  pay  any  taxes  levied 
by  lay  princes,  would  make  no  grant.*  When 
they  persisted  in  their  refusal,  the  king  out- 
lawed them  and  seized  their  property.^  Next 
the  barons  alone  were  summoned  to  Salisbury 
and  asked  to  serve  in  Gascony.  They  refused, 
and  Edward  was  provoked  to  arbitrary  pro- 
cedure the  like  of  which  he  never  at  any  other 

*  Ann.  Trivet,  352,  and  Patent  Rolls,  Dec.  16,  in  Stubbs, 
Sel.  Chart.  (8th  ed.)  439. 
2  Ann.  Trivet,  353,  in  Ibid.  440. 
'  W.  de  Hemingburgh,  ii,  121,  in  Ibid.  440. 


168        THE  BEGINNINGS  OF  PARLIAMENT 

time  attempted.  This  was  the  seizure  of  wool, 
an  illegal  step  which  stirred  up  so  great  an  op- 
position that  it  was  placed  out  of  the  power 
of  the  king  to  take  it  again.  Each  county  was 
at  the  same  time  ordered  to  furnish  supplies 
of  wheat,  oats,  beef  and  pork.*  Fuel  was  added 
to  the  flame  of  popular  indignation  by  a  fur- 
ther demand  upon  the  barons  for  foreign  mili- 
tary service.  Edward  still  needed  money  and 
again  asked  for  it,  only  to  meet  with  another 
rebuff.2  But  he  succeeded  in  getting  together 
a  few  subservient  men  who  had  no  summons 
and  no  representative  authority,  and  who 
readily  granted,  ostensibly  in  behalf  of  people 
who  were  not  their  constituents,  an  eighth  for 
the  barons  and  knights  and  a  fifth  for  the  towns." 
Edward  soon  sailed  for  Flanders,  but  not  until 
the  incensed  barons  had  drawn  up  and  pre- 
sented a  Ust  of  grievances  which  the  king  avoided 
answering  by  his  departure.*  Shortly  before 
he  left,  Edward  issued  letters  for  the  collec- 
tion of  the  eighth  and  fifth  which  had  been 
"granted"  and  of  a  third  of  the  lay  fees  of  the 

*  W.  de  Hemingburgh,  ii,  119,  in  Stubbs,  Sd.  Chart.  (8th  ed.) 
440. 

'  Matt.  Westm.  430,  in  Ibid.  441. 

»  Patent  Rolls,  July  30,  in  Ibid.  442.      . 

*  Rishanger,  175,  in  Ibid.  442. 


THE  BEGINNINGS  OF  PARLIAMENT  169 

clergy.  He  also  made  another  seizure  of  wool, 
as  well  as  of  corn  and  other  supplies.  Lastly 
he  left  a  summons  for  the  barons  and  knights 
who  were  staying  at  home  to  follow  with  his 
son  Edward  the  next  month. 

But  the  leaders  of  the  barons,  Bohun  and 
Bigod,  were  alert.  On  the  very  day  before  the 
sailing  they  forbade  the  Barons  of  the  Ex- 
chequer to  collect  the  aid,  on  the  ground  that 
without  consent  no  tax  ought  to  be  exacted 
or  laid.^  The  king  learned  of  this  just  as  he 
was  sailing,  but  commanded  the  Exchequer 
to  make  the  collection,  under  a  proclamation, 
however,  that  it  should  not  stand  as  a  prece- 
dent; the  wool  was  to  be  taken,  but  only  by 
way  of  purchase.  The  young  prince,  who  was 
left  as  regent,  received  similar  instructions. 
But  this  was  not  satisfactory  to  the  aroused 
barons,  who  forced  the  prince  to  summon  a 
parliament  of  prelates,  barons,  and  knights  of 
the  shire,  the  towns  and  inferior  clergy  not  ♦ 
being  represented.*  This  parliament  secured 
from  the  regent  a  confirmation  of  the  charters, 
annulled  the  aid  of  an  eighth  and  a  fifth,  and, 
its  rights  thus  recognized,  granted  an  aid  of  a 

*  Matt.  West.  430,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  444. 
'  W.  de  Hemingburgli,  ii,  147,  in  Ibid.  444. 


170        THE  BEGINNINGS  OF  PARLIAMENT 

ninth  from  the  laity  assembled.  This  grant 
was  later  extended  to  the  towns.  The  king 
confirmed  the  regent's  acts,  and  salved  feelings 
permitted  the  clergy  to  come  to  Edward's  aid, 
when,  shortly  afterwards,  the  Scots  invaded 
the  north.  While  the  papal  bull  had  forbidden 
the  clergy  to  pay  exactions  laid  by  the  laity, 
it  did  not  prohibit  a  voluntary  offering.  Hence 
the  southern  province,  for  the  defense  of  the 
country,  granted  a  tenth,  while  the  northern 
province  gave  a  fifth.  It  was  not  that  the  sub- 
ject would  be  free  from  taxation,  but  that  he 
would  be  supreme  in  it.  Theoretically  he  won 
his  point,  although  it  was  tumultuously  and 
in  a  parliament  not  perfectly  constituted,  for 
the  king  granted  that  he  and  his  heirs  would 
"for  no  business  from  henceforth  .  .  .  take 
such  manner  of  aids,  tasks  nor  prises,  but  by 
the  common  assent  of  the  realm,  and  for  the 
common  profit  thereof,  saving  the  ancient  aids 
and  prises  due  and  accustomed."  * 

In  calling  the  parliament  of  1295  Edward  I 
had  laid  down  the  principle  that  "that  which 
touches  all  should  be  approved  by  all"  and 

*  Confirmatio  Cartanun,  vi,  in  Stubbs,  Sd,  Chart.  (8th  ed.) 
496.  As  to  all  the  events  of  1296  and  1297,  see  Stubbs,  Const. 
Hist.  §  180,  and  Sd.  ChaH.  487. 


THE  BEGINNINGS  OF  PARLIAMENT        171 

"common  dangers  must  be  met  by  measures 
concerted  in  common."  *  This  was  intended 
immediately  to  refer  only  to  discussion  in 
parliament  concerning  supplies  for  the  war 
with  France,  but  was  of  so  universal  a  nature 
that  its  application  to  general  legislation  could 
not  fail  to  be  seen.  In  the  making  of  law,  then, 
parliament  must  soon  claim  supreme  power. 
A  very  simple  explanation  of  the  process  by 
which  parliament  won  this  its  second  right 
would  be  that  it  received  it  as  the  successor  of 
the  Great  Council,  but  this  would  not  be  true. 
ParUament  did  attract  to  itseK  the  legislative 
power  of  the  Great  Council,  but  the  older  body 
did  not  at  once  pass  away,  was  not  succeeded 
by  the  newer.  When  in  taxation  the  broader 
application  of  the  principle  of  consent  became 
recognized,  a  new  body  representative  of  all 
taxpayers  grew  up  and  attracted  to  itself  the 
right  of  assent.  Probably  parliament  was  not 
at  the  time  looked  upon  as  in  any  way  the  suc- 
cessor of  the  Great  Council,  but  rather  as  its 
supplanter  in  one  line  of  activity.  Therefore 
no  such  simple  argument  could  have  been 
stated  by  the  men  of  the  year  1300  as  that  par- 
liament, being  the  successor  of  the  Great  Coun- 
*  Writ  n,  Stubbs,  Sel.  ChaH.  (8th  ed.)  484. 


172       THE  BEGINNINGS  OF  PARLIAMENT 

cil,  should  have  its  legislative  power,  as  it  had 
the  taxative.  If  such  a  formula  had  been  pos- 
sible, the  commons  would  have  shared  with 
the  lords  the  judicial  power  which  the  latter 
got  when  the  Great  Council  lost  it. 

What,  then,  was  the  process  by  which  the 
representative  body  won  its  right  in  law-mak- 
ing? In  early  times,  it  has  been  argued,  the 
pubUcation  of  new  laws  in  the  shiremoot  may 
have  been  deemed  necessary  for  their  validity. 
The  people  accepted  the  laws  of  Edgar  and 
Edward  in  the  days  of  Canute  and  of  William  I, 
and  Magna  Carta  and  the  Provisions  of  Ox- 
ford were  promulgated  in  the  county  courts, 
where  all  men  were  bound  by  oath  to  obey 
them.*  But  such  procedure  looked  rather  to 
the  execution  than  to  the  making  of  laws.  It 
did  indeed  point  toward  the  consent  of  the 
people  to  legislation,  but  only  remotely.  That 
such  consent  was  coming  to  have  some  re- 
cognition in  theory,  the  general  trend  of  events 
in  the  thirteenth  century  indicates.  Even  the 
king  enunciated  the  ideal  which  was  rising  in 
men's  minds  when  he  called  the  parliament 
of  1295.  The  practice  of  legislation  in  parlia- 
ment, while  in  part  the  realization  of  this  belief 
*  Stubbs,  Const.  Hist.  §  224. 


THE  BEGINNINGS  OF  PARLIAMENT        173 

which  had  been  growing  up,  was,  however, 
won  by  the  use  or  non-use  of  the  primary  power 
of  taxation.  "The  admission  of  the  right  of 
parHament  to  legislate,  to  inquire  into  abuses, 
and  to  share  in  the  guidance  of  national  policy, 
was  practically  purchased  by  the  money  granted 
to  Edward  I  and  Edward  III."  » 

The  Confirmatio  Cartarum  furnishes  a 
striking  example  of  the  process  of  bargain  and 
sale,  it  being  distinctly  understood  that  the 
grant  of  parliament  was  in  return  for  the  re- 
enactment  of  Magna  Carta  and  the  enact- 
ment of  a  law  recognizing  the  right  of  the  peo- 
ple in  the  matter  of  taxation.  Again  in  1300, 
in  return  for  the  vote  of  a  ififteenth,"  Edward  I 
granted  in  parliament  twenty  articles  in  addi- 
tion to  the  charters.  These  Articuli  Super 
Cartas  covered  a  wide  range  of  legislation, 
touching  upon  remedies  for  abuses  of  the  char- 
ters, the  restraint  of  purveyance,  reform  of 
the  jury  system,  the  assaying  of  gold  and  silver, 
forest  reforms,  and  the  jurisdiction  of  courts. 
In  the  following  year  the  carrying  out  of  these 
reforms  and  another  confirmation  of  the  char- 
ters were  demanded  and  granted  as  the  con- 

»  Stubbs,  Canst.  Hist.  §  289. 

2  Matt.  Westm.  433,  in  Stubbs,  Sd.  Chart.  (8th  ed.)  446. 


174        THE  BEGINNINGS  OF  PARLIAMENT 

ditions  of  a  vote  of  money.*  Further  illustra- 
tions of  the  growth  of  legislative  power  in  this 
manner  will  be  noticed  later,  but  these  will 
suffice  to  show  the  process  by  which  parlia- 
ment entrenched  itself.  The  victory  which  the 
people  had  won  was  recognized  by  the  coro- 
nation oath  of  Edward  II.  "Do  you  grant," 
he  was  asked,  "to  hold  and  to  keep  the  laws  and 
righteous  customs  which  the  community  of 
your  realm  shall  have  chosen,  and  will  you  de- 
fend and  strengthen  them  to  the  honor  of  God, 
to  the  utmost  of  your  power?"  "I  grant  and 
promise,"  was  the  reply .^  As  we  shall  shortly 
see,  the  victory  was  far  from  perfect,  and  the 
power  of  parliament  in  legislation  was  theo- 
retical rather  than  practical;  yet,  as  we  have 
already  had  many  occasions  to  notice,  a  theory 
of  liberty  is  the  basis  of  a  vindicated  right. 
The  share  of  the  landowner  as  a  taxpayer  in 
forcing  the  recognition  of  the  theory  is  of  the 
highest  importance;  his  contribution  to  the 
establishment  of  the  practice  is  a  subject  for 
further  discussion. 

»  Stubbs,  Const.  Hist.  §  181.         ^  j^^^  §  249. 


VII 

THE    GROWTH    OF    PARLIAMENT 

In  spite  of  the  theoretical  estabHshment  of  the 
principle  that  action  by  parliament  was  essen- 
tial in  taxation  and  legislation,  there  still  re- 
mained in  the  crown  a  residuum  of  preroga- 
tive which  made  it  possible  for  the  king  often 
to  ignore  the  representative  assembly.  It  was 
not  until  parUament  had  removed  this  obstacle 
that  popular  rights  were  fully  vindicated,  and 
this  was  virtually  accomplished  in  the  four- 
teenth and  fifteenth  centuries,  —  a  very  brief 
time,  if  we  but  remember  that  prerogative  was 
custom  and  as  such  a  part  of  the  constitution. 
Since  it  is  inroad  upon  prerogative  that  marks 
the  growth  of  parUament,  we  must  first  get 
some  idea  of  the  body  called  the  continual 
council  through  which,  in  the  main,  the  king 
exercised  his  ancient  rights.  As  we  shall  have 
little  more  occasion  to  speak  of  the  Commune 
Concilium  or  Great  Council  as  an  active  body, 
it  will  be  understood  that  "council"  hereafter 
means  the  smaller  continual  council. 


176  THE  GROWTH  OF  PARLIAMENT 

From  the  very  earliest  times  English  kings 
had  about  them  a  body  of  household  retainers 
and  servants  who  relieved  them  of  such  por- 
tions of  their  official  duties  as  they  were  un- 
able personally  to  perform.  Even  the  German 
princeps  had  his  comitatus,  perhaps  the  an- 
cestor of  the  Privy  Council.  In  the  time  of  the 
Norman  and  early  Plantagenet  kings,  there 
was  the  Curia  Regis,  composed  of  appointees 
of  the  crown,  living  for  the  most  part  in  the 
royal  household,  always  near  the  king,  and 
aiding  him  in  all  administrative  and  judicial 
affairs.  As  early  as  the  reign  of  Henry  II,  traces 
are  found  of  the  recognition  of  the  king's  pri- 
vate advisers  and  officers  of  household,  state, 
and  court  as  a  somewhat  definite  body,  but  it 
was  only  in  the  minority  of  Henry  III  that  a 
royal  council  first  became  distinguished  from 
the  judicial  bodies  of  the  Curia  Regis  and  from 
the  Great  Council.  It  was  not  then  a  clearly 
defined  body  of  men  with  powers  absolutely 
fixed,  but  it  probably  contained  the  officers 
of  household  and  state,  the  whole  judicial  staff, 
some  bishops  and  barons,  and  a  few  other  ad- 
visers. It  was  a  permanent  resident  council 
always  ready  to  act  with  the  king  upon  any 
emergency.     Its  members  had  their  duties  in 


THE  GROWTH  OP  PARLIAMENT  177 

the  various  departments  of  justice  and  busi- 
ness administration  which  well  qualified  them 
for  action  with  the  king  upon  questions  of  gen- 
eral poUcy  which  arose  from  time  to  time. 
What  distinguished  them  as  a  council  was  that, 
aside  from  their  departmental  duties,  they  had 
a  distinct  function  as  counselors  deUberating 
upon  matters  of  general  poUcy,  planning  the 
business  of  state,  formulating  the  king's  de- 
mand for  taxation,  and  framing  legislation.  In 
origin  the  council  was  an  executive  body;  what 
authority  it  had  in  legislation,  taxation,  and 
judicature  represented  the  prerogative  which 
the  crown  retained.* 

The  powers  of  the  council  had  long  been 
accruing  and  were  such  as  might  be  expected 
to  center  in  a  body  of  executive  officials  to  whom 
the  king  had  for  a  long  time  delegated  much 
of  his  regular  business.  It  only  needed  that 
the  ministers  should  come  to  feel  an  esprit  de 
corps  and  to  exercise  their  offices  without  royal 
interference,  as  during  the  minority  of  Henry 
III,  for  them  to  become  a  distinct  feature  of 
the  constitution,  a  body  with  an  influence  to 
be  counted  upon.     This  influence,  as  Profes- 

*  Stubbs,  Const.  Hist.  §§  171,  230;  2  Anson,  Law  and  Ciu- 
tom  of  the  Constitution,  84. 


178  THE  GROWTH  OF  PARLIAMENT 

sor  Dicey  has  said,  was  paradoxical.  "The 
same  body  was  at  once  the  controller  and  the 
servant  of  the  Crown;  the  channel  through 
which  the  royal  mandates  passed,  the  instru- 
ment of  the  prerogative;  and  at  the  same  time 
the  check  on  the  King's  power,  the  curb  placed 
by  the  aristocracy  on  the  arbitrary  exercise  of 
his  will.  Hence  increase  of  the  Council's  in- 
fluence means,  at  one  period  of  history,  a  lim- 
itation of  the  prerogative;  at  another,  as  for 
instance  in  the  sixteenth  century,  an  addition 
to  the  royal  authority."  *  The  paradox  is  ex- 
plained in  this  way:  The  council  was  an  as- 
sembly of  purely  royal  officials,  owing  its  exist- 
ence to  the  king's  pleasure  and  acting  always 
in  his  name.  Its  members  were  really  servants 
of  the  king,  yet  they  were  able  often  to  check 
him;  for  while,  with  the  exception  of  a  few 
hereditary  officers,  they  were  appointed  and 
dismissed  at  the  king's  will,  they  were  often 
because  of  their  power  indispensable  to  the 
crown.'  Then,  too,  the  value  of  their  advice 
was  a  constant  source  of  influence."  Another 
fact  which  added  to  the  check  which  they 
exerted  on  the  king  was  that  the  bishops  in  the 

*  Dicey,  The  Privy  CouncU  (ed.  1887)  29. 
2  Ibid.  31.  'Ibid.  33. 


THE  GROWTH  OF  PARLIAMENT  179 

council  were  virtual  representatives  of  the 
clergy,  who  soon  ceased  to  attend  parliament 
and  granted  taxes  separately  in  convocation; 
while  the  nobles,  who  were  in  the  majority  in 
the  council,  had  great  estates  and  local  influ- 
ence which  made  it  possible  for  them  to  treat 
with  the  king  on  an  independent  footing. 

In  so  far  as  the  council  acted  as  a  check  upon 
the  king,  it  was  an  influence  making  for  liberty. 
Imperfect  it  indeed  was,  because  not  repre- 
sentative, but  it  was  effectual  in  taking  some 
of  the  actual  exercise  of  prerogative  from  the 
crown.  In  so  far  as  it  was  subservient  to  the 
king,  it  was  an  obstacle  to  popular  liberty,  hence 
more  and  more,  as  we  shall  later  see,  parlia- 
ment attempted  to  control  the  council.  It  is 
worthy  of  remark  that  when  the  council,  as 
under  the  Lancastrians,  was  made  up  of  feudal 
lords,  it  was  a  check  upon  the  king.  When, 
however,  under  the  early  Tudors  its  members 
were  men  of  no  great  estate,  it  was  the  tool  of 
the  king.*  It  is  fair  to  say  that  whatever  influ- 
ence the  council  had  in  lessening  prerogative 
was  exerted,  if  not  always  in  the  interest  of 
land,  at  least  by  landed  men. 

While  the  council  often  invaded  the  king's 
*  2  Anson,  Law  and  Cud.  86. 


180  THE  GROWTH  OF  PARLIAMENT 

peculiar  reserve  of  authority,  it  must  not  be 
thought  that  that  reserve  was  soon  exhausted. 
On  the  contrary  it  continued  through  the  four- 
teenth and  fifteenth  centuries  to  oiffer  many 
points  of  resistance  to  the  growth  of  popular 
rights,  and  neariy  always  it  was  not  the  king 
alone,  but  the  king  in  council,  which  was  the 
medium  through  which  prerogative  found  ex- 
pression. It  is  a  large  field  of  inquiry  that  is 
opened  before  us,  but  it  may  be  well  to  review 
it  as  briefly  as  may  be,  for  in  so  doing  we  shall 
be  able  to  follow  the  growth  of  parHament. 
Let  us  first  consider  the  operation  of  prerog- 
ative in  the  field  of  taxation,  where  parlia- 
ment earUest  estabHshed  its  theoretical  su- 
premacy. 

There  can  be  no  question  that  the  spirit  of 
the  Confirmatio  Cartarum  was  that  the  king 
should  take  no  tax  without  the  consent  of  par- 
liament. Yet  the  crov^n  found  loopholes  for 
the  exercise  of  arbitrary  taxation  which  caused 
the  people  great  annoyance,  and  but  for  their 
sturdy  resistance  might  have  nullified  the  great 
concessions  which  had  been  made.  This  same 
Confirmatio  Cartarum  has  often  been  taken 
as  forbidding  tallage  without  consent,  but  the 
word  tallagium  was  not  used  in  the  statute. 


THE  GROWTH  OF  PARLIAMENT  181 

which  renounced  '*  aides,  mises  et  prises."  A 
king  tenacious  of  prerogative  could  with  plaus- 
ibility argue  that  this  meant  only  contributions 
levied  upon  the  kingdom  at  large  without  con- 
sent, and  did  not  apply  to  demands  made  ac- 
cording to  feudal  right  upon  crown  lands.  So 
the  first  three  Edwards  tallaged  their  demesne 
lands  in  spite  of  the  spirit  of  the  law.  In  1340, 
however,  the  commons  named  as  one  of  the 
conditions  of  the  grant  of  a  custom  the  enact- 
ment of  a  statute  that  the  nation  should  "no 
more  be  charged  or  grieved  to  make  any  com- 
mon aid  or  sustain  charge,  except  by  the  com- 
mon assent "  of  the  estates,  "  and  that  in 
parUament."  *  Again  in  1348,  the  commons 
attached  to  a  grant  the  condition  that  no  tall- 
age or  similar  exaction  should  be  imposed  by 
the  council.2  Further  assurances  against  tall- 
age were  given  by  Edward  III  in  1352  and 
1377,  evidently  to  confirm  a  doubting  parlia- 
ment, for  never  after  1332  was  demesne  tall- 
aged,  although  Edward  often  broke  the  statute 
of  1340  in  other  respects.  Scutage  was  taken 
as  late  as  1385,  and  then  fell  out  of  use,  while 
the  three  customary  aids,  although  apparently 
they  came  under  the  provisions  of  the  statute, 

*  Stubbs,  Canst.  Hist.  §  257.  '  Ibid.  §  259. 


182  THE  GROWTH  OF  PARLIAMENT 

continued  to  be  taken  much  longer.  Custom 
is  hard  to  overcome,  but  parHament  had  really 
purchased  a  great  increase  in  power.* 

But  it  was  not  merely  in  the  control  of  direct 
taxation  that  parliament  grew;  it  was  equally 
active  in  the  matter  of  customs.  The  customs 
consisted  of  (1)  the  ancient  custom  and  prisage 
of  wine,  (2)  the  subsidy  on  exported  wool,  or 
new  custom,  (3)  tunnage  and  poundage.' 
The  ancient  custom  was  an  export  duty,  granted 
by  the  first  parliament  of  1275,  of  half  a  mark 
upon  each  sack  of  wool  or  every  three  hundred 
wooKells,  and  of  one  mark  on  every  last  of 
leather.'  This  and  the  prisage  upon  imported 
wine  became  a  part  of  the  hereditary  revenue 
of  the  crown.  By  express  exception  they  did 
not  fall  under  the  provisions  of  Confirmatio 
Cartarum.* 

In  1303  arose  the  new  custom,  which,  in  return 
for  certain  privileges  conceded  by  Edward  I 
to  the  foreign  merchants,  was  granted  by  them 
to  the  king.  It  was  an  addition  to  the  ancient 
custom  of  lOd.  on  each  sack  of  wool  or  three 

*  On  the  whole  matter  of  direct  taxation,  see  Stubbs,  Const. 
Hid.  §  275. 

*  2  Anson,  Law  and  Oust.  287. 

»  Stubbs,  Sd.  Chart.  (8th  ed.)  451. 

*  Con.  Cart,  vi,  vii,  in  Ibid.  494. 


THE  GROWTH  OF  PARLIAMENT  183 

hundred  woolfells  exported  and  Sd.  in  the 
pound  on  all  goods  imported  by  aliens.*  It  was 
a  palpable  evasion  of  parliamentary  claims, 
but  technically  a  legal  one,  for  although  a  pri- 
vate negotiation  for  money  such  as  Confir- 
matio  Cartarum  attempted  to  avoid,  it  was 
a  bargain  with  foreigners,  whose  interests  were 
in  no  wise  affected  by  the  words  of  the  statute. 
It  was,  for  all  that,  contrary  to  the  freedom 
of  trade  promised  by  the  41st  clause  of  Magna 
Carta,  a  consideration  nevertheless  which  was 
of  slight  importance  at  the  moment  in  com- 
parison with  the  fact  that  the  king  had  seized 
upon  a  means  of  making  him  less  dependent 
upon  parliament.  Naturally  objection  was 
made.  Parliament  petitioned  for  the  removal 
of  the  new  custom  in  1309  and  obtained  it  for 
a  year  in  order  that  its  effect  upon  prices  might 
be  determined,  but  it  was  restored  again  in 
1310.  During  the  ascendency  of  the  Lords 
Ordainers  from  1311  to  1322,  it  was  again 
suspended,  and  again  restored  when  Edward 
II  returned  to  power.  Thereafter  the  king  and 
council  went  on  making  bargains  with  mer- 
chants in  excess  of  the  old  rate,  while  parlia- 
ment regularly  remonstrated.     But  since  par- 

*  2  Anson,  Law  and  Cust.  286. 


184  THE  GROWTH  OF  PARLIAMENT 

liament  could  not  control  the  king  in  his  execu- 
tive action,  he  was  able  with  impunity  to  collect 
the  custom  on  the  basis  of  the  agreements  he 
had  made,  and  parliament  had  to  submit. 
An  assembly  of  unparliamentary  constitution, 
with  the  commons  irregularly  represented,  in 
1353  adopted  the  new  custom  in  the  Ordinance 
of  Staples,  which  received  parUamentary  sanc- 
tion in  the  form  of  a  statute  the  following  year. 
While  parUament  thus  conceded  a  point  to 
the  king,  it  soon  won  another,  for  in  1362  it 
was  enacted  that  neither  merchants  nor  any 
other  body  should  henceforth  set  any  subsidy 
or  charge  on  wool  without  the  consent  of  par- 
liament. Nine  years  later,  in  1371,  the  law 
was  reenacted,  and  the  conflict  was  for  the 
time  at  an  end.* 

The  king  had  long  enjoyed  the  right  to  seize 
a  portion  of  imported  wine  under  the  name  of 
prisage.  Edward  II  began  the  custom  of  bar- 
gaining with  the  merchants  for  the  commuta- 
tion of  prisage  at  a  fixed  sum  for  each  tun  in 
excess  of  the  ancient  levy.  To  this  the  king 
in  council  added  the  fixing  of  a  custom  of  so 
many  pence  in  the  pound  on  other  merchan- 
dise. In  this  way  tunnage  and  poundage  grew 
>  Stubbs,  Canst.  Hid.  §  !259. 


THE  GROWTH  OF  PARLIAMENT  185 

up.  Parliament  never  admitted  the  right  of 
the  king  and  council  in  this  matter,  any  more 
than  in  the  business  of  the  staple,  and  after 
the  statute  of  1371,  the  controversy  seemed 
closed.*  The  parliamentary  victory  was  for 
the  time  complete,  and  after  the  accession  of 
Richard  II  there  was  no  instance  until  the 
Tudors  of  an  attempt  at  unauthorized  taxation 
of  merchandise.' 

Even  with  direct  and  indirect  taxation  of 
the  sorts  mentioned  in  the  control  of  parlia- 
ment, the  king  had  still  other  sources  of  revenue. 
He  could  borrow,  and  did  so  freely.  First  he 
made  use  of  the  Jews,  who  came  under  his 
special  protection,  to  raise  forced  loans.  These 
the  lenders  recouped  from  the  people  by  usury, 
and  thus  the  subject  indirectly  paid  the  sov- 
ereign's debts.  After  the  banishment  of  the 
Jews  in  1290,  the  situation  was  not  reHeved, 
for  the  king  could  still  borrow  abroad,  and 
parhament,  unable  to  repudiate  the  royal  debts, 
must  make  extra  grants.  At  home  the  king 
forced  his  credit  upon  prelates,  towns,  and 
monasteries,  giving  as  security  the  next  grant 

*  2  Anson,  Law  and  Oust.  287. 

'  Stubbs,  Const.  Hist.  §  277;  1  Anson,  Law  and  Cust.  274, 
275. 


186  THE  GROWTH  OF  PARLIAMENT 

in  parliament  or  ecclesiastical  convocation. 
When  the  lenders  later  met  in  council,  they 
must  either  grant  a  tax  or,  what  was  almost 
equivalent,  release  the  king.  The  remedy  for 
the  situation  was  not  in  increased  parliamentary 
control  of  taxation,  but  in  restraint  of  the  royal 
and  national  expenditure  and  in  control  of  the 
executive.* 

The  prerogative  found  another  source  of 
income  in  the  custom  of  purveyance  which 
had  come  down  from  the  most  ancient  times. 
Originally  based  upon  the  duty  of  the  country 
to  support  the  king  and  his  retinue  during  his 
progresses,  it  had  been  extended  and  abused 
by  kings  who  required  it  for  the  benefit  of  others 
than  themselves  and  upon  occasions  when  they 
could  not  legally  require  it  for  themselves. 
Purveyance  included  the  taking  of  provisions, 
the  compulsory  use  of  horses  and  carts,  and 
the  enforcement  of  labor  for  prices  set  by  the 
purveyor  or  for  nothing  at  all.  The  payment,  if 
any,  was  in  tallies,  the  amount  of  which  was 
deducted  from  the  purveyee's  next  tax,  so  that 
it  really  amounted  to  taking  an  impost  before 
it  was  granted.  Parliament  tried  again  and 
again  to   abolish  purveyance,   and   finally  in 

*  Stubbs,  Const.  Hist.  §  278. 


THE  GROWTH  OF  PARLIAMENT  187 

1362  succeeded  in  doing  away  with  it  except 
for  the  personal  use  of  the  king  and  queen.* 

One  other  source  of  income  Dr.  Stubbs  men- 
tions. This  was  the  system  of  commissions  of 
array,  by  means  of  which  the  king  impressed 
men  for  miHtary  service  at  the  cost  of  the  shires 
or  townships.  Sometimes  this  was  made  the 
basis  of  a  tax  by  commutation.  It  was  en- 
acted in  1352  that  no  one  not  bound  by  tenure 
should  be  compelled  to  furnish  armed  men 
unless  by  authority  of  parUament.  The  statute 
was  confirmed  during  the  reign  of  Henry  IV, 
but  the  abuses  were  not  entirely  restrained.  =* 

While  parliament  was  thus  confirming  in 
practice  its  theoretical  right  to  supremacy  in 
every  branch  of  taxation,  an  important  change 
was  taking  place  in  the  manner  of  granting 
taxes,  which  resulted  in  the  best  safeguard  of 
its  privileges  which  parliament  has  in  this  de- 
partment. At  first  the  taxes  were  granted  sep- 
arately, and  sometimes  in  different  amounts,  by 
the  barons  and  commons,  while  the  stipend- 
iary clergy  taxed  themselves  outside  of  par- 
liament. From  the  end  of  the  reign  of  Richard 
II,  parliamentary  taxes  were  voted  by  the  com- 

*  Stubbs,  Canst.  Hist.  §  279. 
2  Ibid.  §  280. 


188  THE  GROWTH  OF  PARLIAMENT 

mons  with  the  advice  and  consent  of  the  lords.* 
Not  only  did  the  two  houses  become  as  one 
in  their  financial  relations  with  the  king,  thus 
gaining  greater  power  of  resistance  to  pre- 
rogative, but  the  initiative  in  taxation  was  also 
transferred  from  the  king  to  the  commons. 
Henry  IV  was  forced  in  1407  to  declare  the 
right  of  both  houses  to  deliberate  apart  from 
the  interference  of  the  king  upon  the  amount 
of  a  tax,  that  neither  house  could  report  on  a 
grant  until  both  were  agreed,  and  that  then  the 
report  should  be  made  by  the  mouth  of  the 
speaker  of  the  commons.^  From  the  demand  of 
the  king  for  a  certain  sum  and  the  formal  consent 
of  his  barons,  to  the  determination  by  the  poorer 
taxpayers  of  the  commons  as  to  the  amount 
which  should  be  given,  —  that  was  the  won- 
derful growth,  in  a  nation  where  habit  was 
almost  the  strongest  moulder  of  affairs,  of  only 
two  centuries. 

All  this  advance  of  parliament  in  taxative 
power  carried  with  it  a  great  mass  of  legisla- 
tion, which  went  of  course  to  strengthen  that 
assembly  as  a  law-making  body.  But  parlia- 
ment did  not  confine  itself  to  matters  directly 
touching  taxation;  by  means  of  grants  of  money 

*  Stubbs,  Canst  Hist.  §  438.  «  i^id.  §  315. 


THE  GROWTH  OF  PARLIAMENT  189 

it  purchased  a  share  in  all  sorts  of  legislation 
and  gradually  established  itself  as  the  supreme 
legislative  body.  A  good  illustration  of  this 
is  found  in  the  proceedings  of  the  year  1340. 
As  the  condition  of  large  grants  in  addition 
to  the  generous  ones  already  given  for  the 
French  war  then  in  progress,  parliament  pe- 
titioned for  certain  reforms,  which  were  ac- 
cepted by  the  king  and  embodied  in  four  stat- 
utes covering  a  wide  range  of  legislation.  The 
first  of  these,  besides  reform  in  the  tax  on  wool, 
secured  the  abolition  of  presentment  of  Eng- 
lishry,  regulated  the  appointment  of  sheriffs, 
dealt  with  the  local  courts,  limited  purveyance, 
and  enlarged  the  functions  of  the  judges  at 
Nisi  Prius,  who  had  succeeded  the  itinerant 
justices.  The  second,  already  referred  to,  for- 
bade the  impost  of  any  charge  or  aid  except 
by  the  consent  of  parliament.  The  third  de- 
clared that  the  assumption  by  Edward  III  of 
the  title  of  king  of  France  should  never  bind 
English  subjects  to  the  French  crown.  The 
fourth  protected  the  clergy  against  abuses  of 
royal  right.* 

But  the  parliamentary  victory  could  not  be 
won  solely  by  forcing  the  king  to  assent  to  pe- 
*  Stubbs,  Cmst.  Hist.  §  257. 


100  THE  GROWTH  OF  PARLIAMENT 

titions  for  specific  laws.  Several  obstacles  re- 
mained in  the  way  of  advance,  and  we  must 
see  how  these  were  disposed  of.  First  of  all 
these  obstacles  was  the  remnant  of  legislative 
power  which  the  crown  for  a  time  persisted 
in  keeping.  Throughout  the  history  of  Eng- 
land, even  from  Saxon  times,  the  king  had 
been  the  law-maker.  He  had,  it  is  true,  usu- 
ally, if  not  always,  sought  the  consent  of  cer- 
tain of  his  subjects,  and  we  have  seen  how  this 
consent  ranged  from  mere  formality  to  some- 
thing of  reality.  He  had  also  from  time  to  time 
asked  advice,  and  sometimes  counsel  had  come 
unsought;  but  always  he,  or  his  ministers  in 
his  behalf,  had  initiated  and  enacted  the  laws. 
It  is  not  surprising,  therefore,  that  when  the 
theory  of  consent  to  legislation  had  become 
established,  even  when  that  theory  demanded 
that  consent  be  given  in  a  representative  as- 
sembly, ancient  custom  should  sometimes  be 
adhered  to  by  the  king  in  legislation.  In  a  time 
of  transition,  confusion  is  only  natural.  We 
find,  only  five  years  before  the  model  parlia- 
ment of  1295,  the  enactment  of  so  important 
a  statute  as  the  Quia  Emptores  in  an  assem- 
bly composed  of  the  king's  immediate  coun- 
cil and  the  baronage.    Edward  III  held  Great 


THE  GROWTH  OF  PARLIAMENT  191 

Councils  which  usurped  the  functions  which 
then  theoretically  belonged  to  parUament.*  But 
such  assemblies  were  rare  and  presented  a 
small  problem  compared  with  the  legislative 
power  exercised  by  the  king  in  his  continual 
council,  where  were  made  ordinances  of  full 
and  equal  authority  with  the  statutes  made 
in  parliament.2  Here  was  a  practice  sub- 
versive of  the  principle  of  1295  that  "that 
which  touches  all  should  be  approved  by  all,"  ' 
a  practice  which  continued  in  spite  of  the  legis- 
lation of  1322  invalidating  ordinances  and  de- 
claring that  "the  matters  which  are  to  be 
established  for  the  estate  of  our  lord  the  king 
and  of  his  heirs,  and  for  the  estate  of  the  realm 
and  of  the  people,  shall  be  treated,  accorded, 
and  established  in  parliaments  by  our  lord 
the  king,  and  by  the  consent  of  the  prelates, 
earls,  and  barons,  and  the  commonalty  of  the 
realm."  * 

As  a  partial  remedy  for  the  situation,  par- 
liament insisted  upon  a  clear  distinction  being 
made  between  statutes  and  ordinances.   A  stat- 

*  2  Anson,  Law  and  Cust.  85. 
2  Stubbs,  Cmst.  Hist.  §  232. 

»  Writ  n,  Stubbs,  Sd.  Chart.  (8th  ed.)  484. 

*  Stubbs,  Cmst.  Hist.  §  254. 


IM  THE  GROWTH  OF  PARLIAMENT 

ute  was  an  act  of  the  crown,  lords,  and  com- 
mons, engrossed  in  the  statute  roll  and  re- 
garded as  a  permanent  addition  to  the  law. 
It  was  revocable  only  by  another  statute  made 
in  parliament.  An  ordinance,  on  the  other 
hand,  was  an  act  of  the  king,  usually  in  coun- 
cil. It  was  temporary  and  revocable  at  any 
time  by  the  king  or  the  king  in  council.  It 
was  not  engrossed,  but  was  issued  in  the  form 
of  letters  patent.  This  distinction  seems  to 
have  been  well  understood  after  1354.  An 
irregular  assembly  of  the  previous  year,  vir- 
tually a  Great  Council,  had  made  the  Ordi- 
nance of  Staples.  Remonstrance  was  at  once 
made,  and  in  the  parliament  of  1354  it  was 
established,  in  return  for  the  enactment  of  the 
ordinance  as  a  statute,  that  such  matters  must 
henceforth  be  dealt  with  by  statute.*  The 
crown  continued  nevertheless  to  abuse  the  right 
to  make  ordinances,  especially  in  the  time  of 
Richard  II,  who,  when  petitioned  by  com- 
mons in  1390  that  the  chancellor  and  council 
should  not  after  the  close  of  parliament  make 
any  ordinance  contrary  to  the  common  law 
or  ancient  custom  of  the  land  and  to  the  stat- 
utes enacted  by  parliament,  evasively  replied 

*  1  Anson,  Law  and  Cust,  211-213. 


THE  GROWTH  OF  PARLIAMENT  193 

that  what  had  before  been  done  should  be  done 
still,  saving  the  prerogative  of  the  king.  This 
was  one  grievance  which  led  to  Richard's  de- 
position.* Notwithstanding  the  extreme  te- 
nacity of  prerogative,  parliament  made  marked 
advance  against  royal  legislation,  and  even 
though  it  could  not  entirely  do  away  with  or- 
dinances, was  yet  able  to  limit  them.  Much 
was  gained  in  this  respect  by  the  change  of 
procedure  in  parliamentary  legislation. 

The  early  procedure  was  an  even  greater 
obstacle  to  the  growth  of  parliament  than  the 
independent  legislation  of  the  king.  In  the  be- 
ginning statutes  were  drafted  and  enacted  by 
the  crown,  or  the  crown  in  council,  on  peti- 
tion of  parliament.  This  petition  was  usually 
presented  by  the  commons,  which  thus  gradu- 
ally came  into  a  position  where  it  could  initiate 
legislation  as  well  as  taxation.  Before  the  pe- 
tition was  tendered,  the  king  had  probably 
stated  his  need  of  money,  so  that  the  grant  of 
taxes,  as  we  have  seen,  was  often  made  depend- 
ent upon  the  king's  favorable  answer  to  the 
petition.  But  though  parliament  claimed  that 
grievances  should  precede  supply,  the  king's 
promise  of  redress  might  be  all  they  could  get. 

*  Stubbs,  C(mgt.  Hist.  §  292. 


194  THE  GROWTH  OF  PARLIAMENT 

Even  the  return  of  an  apparently  satisfactory 
answer  often  proved  of  Kttle  avail,  for  it  might 
be  ambiguous.  Nor  was  a  clear  answer  always 
suflScient,  for  the  statute  based  upon  the  peti- 
tion was  framed  and  enacted  by  the  king  and 
council,  usually  after  the  adjournment  of  par- 
liament. The  crown  was  thus  left  with  the  real 
key  to  the  situation  and  often  found  it  conven- 
ient to  forget  entirely  that  there  had  been  either 
petition  or  answer.  Undoubtedly  some  statute 
was  usually  engrossed,  but  the  wishes  of  parUa- 
ment  were  often  defeated  by  variations,  excep- 
tions, and  saving  clauses.  Even  when  the  statute 
was  enrolled  as  desired,  the  king  might  still  re- 
pudiate it,  or  at  least  suspend  its  operation  in 
whole  or  in  part  or  grant  pardons  for  its  infringe- 
ment.* 

Parliament  naturally  used  all  its  efforts  to 
overcome  these  obstacles.  It  demanded  that 
the  king's  answers  be  in  writing  and  sealed;  it 
made  a  condition  to  grants  of  supply  that  pe- 
titions as  exhibited  be  affirmed.'  In  the  year 
1414  the  commons  petitioned  that  no  law  be 
made  by  addition  or  by  diminution  which  by  any 

*  1  Anson,  Law  and  Oust.  15, 16, 18, 214-216;  Stubbs,  Const. 
Hwrf.  §§  290,  369. 
'  1  Anson,  Law  and  Ciist.  216. 


THE  GROWTH  OF  PARLIAMENT  195 

manner  of  terms  should  change  the  sentence 
and  the  intent  asked.  Henry  V  answered  that 
"from  henceforth  nothing  be  enacted  to  the  peti- 
tions of  his  Comune  that  be  contrarie  of  their 
asking,  whereby  they  should  be  bound  without 
their  assent;  saving  alway  to  our  liege  lord  his 
royal  prerogative  to  grant  and  deny  what  him 
lust  of  their  petitions  and  asking  aforesaid."  * 

This  marked  a  great  step  in  advance,  and 
reduced  the  king  to  the  mere  right  of  approval 
or  disapproval,  a  situation  of  affairs  which  be- 
came permanent  when,  by  the  end  of  the  reign 
of  Henry  VI,  it  became  customary  for  legisla- 
tion to  be  initiated  in  the  form  of  a  bill.  Hence- 
forth legislation  purports  to  be  not  by  "  consent" 
or  "at  the  request  of  the  commons,"  but  "by 
the  authority  of  parHament."  ^ 

The  legislative  prerogative  had  now  fallen 
to  the  power  of  formal  assent  or  dissent.  The 
king  and  his  subjects  had  changed  places;  the 
one,  who  had  once  had  the  initiative  and  en- 
active  authority,  had  parted  with  it  for  the 
empty  right  of  consent  which  the  others  had 
possessed  two  brief  centuries  before.'      One 

*  1  Anson,  Law  and  Cud.  216;  Stubbs,  Const.  Hist.  §  325. 
'  1  Anson,  Law  and  Cust.  217;  Stubbs,  Const.  Hist.  §  290. 
'  1  Anson,  Law  and  Cust.  220. 


196  THE  GROWTH  OF  PARLIAMENT 

step  only  remained  before  the  crown  lost  even 
what  it  then  retained;  but  that  lies  beyond  our 
inquiry,  in  the  time  when  the  cabinet  system 
made  it  unwise,  and  hence  practically  impos- 
sible, for  the  king  to  veto  a  bill,  and  reduced 
him  to  a  right  of  assent  which  is  the  valueless 
vestige  of  one-time  supremacy.^ 

Parliament  was  not  satisfied  merely  to  have 
power  in  taxation  and  legislation,  but  also  reached 
out  into  other  departments  of  national  affairs. 
This  was  the  case  in  judicial  matters.  The  three 
common  law  courts  of  King's  Bench,  Exchequer 
and  Common  Pleas  had  been  cast  off  from  the 
Curia  Regis  and  become  independent  benches 
during  the  reign  of  Henry  III,^  and  had  ab- 
sorbed all  the  work  of  the  local  popular  courts 
except  small  cases.'  As  eariy  as  the  Articuli 
Super  Cartas  of  1300  we  see  pariiament  deal- 
ing with  the  common  law  courts  and  regulating 
their  jurisdiction,*  and  there  was  from  time 
to  time  much  legislation  concerning  the  jus- 
tices of  assizes.'  The  upper  house  of  pariiament 
became  a  court  of  appeal  from  errors  of  law  in 

*  The  veto  has  not  been  exercised  since  the  early  part  of  the 
eighteenth  century.  Stubbs,  Const.  Hist.  §  441. 

2  Stubbs,  Const.  Hist.  §  233.  »  Ibid.  §  236. 

*  Ibid.  §  181.  '  Ibid.  §  235. 


THE  GROWTH  OF  PARLIAMENT  197 

the  common  law  courts,  and  has  remained  so  to 
this  day.  When  these  courts  could  not  do  justice 
because  of  the  "might  on  one  side  and  the  too 
great  unmight  on  the  other, "  or  because  they 
had  no  rules  of  law  applicable  to  the  case,  the 
king's  extraordinary  jurisdiction  was  invoked 
by  petition  to  the  royal  council.  It  very  early 
became  the  custom  to  refer  the  equitable  mat- 
ters (that  is,  cases  where  the  rules  of  common 
law  could  afford  no  remedy)  to  the  chancellor, 
and  before  the  end  of  the  reign  of  Edward  III 
that  officer  ceased  to  follow  the  person  of  the 
king,  and  the  Court  of  Chancery  was  formed, 
as  the  common  law  courts  had  been.^  Other 
extraordinary  jurisdiction  the  council  still  re- 
tained and  exercised  in  two  ways :  (1)  by  issu- 
ing special  commissions  of  oyer  and  terminer, 
(2)  by  summoning  accused  persons  before  the 
council.  After  repeated  remonstrances  by  par- 
liament, the  former  was,  before  the  time  of 
Richard  II,  abandoned.  The  latter  survived 
and  was  at  times  used  with  salutary  effect  against 
powerful  offenders  whom  no  jury  would  have 
dared  to  convict,  but  the  system  was  open  to 
great    abuse.       Hence   parliament   repeatedly 

*  Dicey,  Priv.  Court.  13-17;  2  Anson,  Law  and  Cud.  413; 
Stubbs,  Cmst.  Hist.  §  234. 


198  THE  GROWTH  OF  PARLIAMENT 

tried  to  transfer  the  jurisdiction  of  the  council 
to  the  common  law  courts  or  at  least  to  con- 
trol the  council,  but  all  in  vain.  The  system 
survived,  and  caused  pariiament  trouble  in 
succeeding  centuries.*  ParHament  did,  how- 
ever, in  the  Middle  Ages  have  a  general  over- 
sight of  judicature,  and  its  claims  to  regulate 
the  council  and  to  control  the  choice  of  jus- 
tices show  growth. ' 

So  too  pariiament  had  won  a  share  in  general 
deliberation  concerning  national  policy  and 
matters  of  peace  and  war  by  the  middle  of  the 
fourteenth  century.'  It  became  generally  pretty 
independent  of  the  king,  who,  while  opening 
and  closing  the  sessions,  could  not  attend  de- 
bates.* The  document  of  the  middle  of  the 
fourteenth  century  called  Modus  Tenendi  Par- 
liamentum,  when  it  spoke  of  the  king's  obli- 
gation to  attend  the  sessions,''  looked  backward 
to  a  time  when  the  crown  was  the  supreme 
legislator  and  forward  to  the  time  when  pariia- 
ment, instead  of  requiring  the  formahty  of 
presence,  would  be  so  independent  as  to  re- 

*  Dicey,  Friv.  Coun.  69. 

*  Stubbs,  Const.  Hist.  §  295;  2  Anson,  iaw  and  Cud.  19, 20. 
»  Stubbs,  Const.  Hist.  §§  257,  294. 

*  Ibid.  §  444.  »  Stubbs,  Sel.  Chart.  (8tli  ed.)  510. 


THE  GROWTH  OF  PARLIAMENT  199 

sent  it.  As  a  further  indication  of  parlia- 
mentary independence,  the  theory  ran  that 
all  petitions  must  be  discussed  before  the  king 
could  prorogue  the  assembly .»  The  power  of 
the  crown  to  call  and  dismiss  parliament  was 
also  limited  by  statutes  providing  that  parlia- 
ments be  holden  every  year  once,  and  more 
often  if  need  be.  As  a  matter  of  fact  they  were 
frequently  intermitted,'  but  parliament  was 
evidently  on  the  road  of  growth. 

Even  more  transcendent  powers  with  rela- 
tion to  the  crown  were  assumed  by  parliament. 
Edward  II  was  in  1327  declared  by  the  legis- 
lature to  be  unfit  to  reign,  while  his  son  was 
declared  worthy  and  the  king  was  forced  to  re- 
sign.' Richard  II,  after  his  defeat  by  Henry 
of  Lancaster,  offered  to  resign.  A  parliament 
was  called,  which,  after  accepting  the  resigna- 
tion and  drawing  up  a  recital  of  Richard's 
abuses  of  prerogative,  his  illegal  exactions,  and 
his  claim  to  sole  legislative  power,  formally 
deposed  him.*  In  1404  and  1406  parliament 
passed  acts  settling  the  succession  to  the  crown." 

1  Stubbs,  Sd.  ChaH.  (8th  ed.)  512,  513. 

'  1  Anson,  Law  and  Cvst.  246. 

'  Stubbs,  Cmst.  Hist.  §  255. 

*  Ibid.  §  269.  »  Ibid.  §  313. 


200  THE  GROWTH  OF  PARLIAMENT 

These  were  followed  by  a  repeal  in  1460,  when 
it  was  enacted  that  the  crown  should  go  to  the 
Duke  of  York  at  the  death  of  Henry  VI.*  After 
the  duke's  usurpation  and  Henry's  return  to 
power  in  1470,  there  was  a  restorative  act  of 
parliament.'  When  Edward  IV  regained  the 
throne  soon  after,  he  did  not  find  it  necessary 
to  consult  parliament  about  his  title,  yet  Rich- 
ard III,  on  assuming  the  crown  in  1483,  thought 
it  politic  to  get  his  claim  confirmed  by  the  legis- 
lature.' All  of  these  acts  of  parliament  re- 
presented popular  acquiescence  in  the  rising  of 
a  new  power  rather  than  any  definite  choice 
of  a  new  king,  but  the  fact  that  parHament 
was  repeatedly  appealed  to  as  the  perfector  of 
a  title  shows  how  its  authority  had  increased. 

One  other  respect  in  which  parliament  reached 
out  for  power  demands  consideration.  The 
right  to  supremacy  in  the  laying  of  taxes,  al- 
though important,  was  really  only  half  of  the 
stake  in  the  battle  over  taxation.  Although 
the  people  might  theoretically  say  what  they 
would  grant  and  when  they  would  grant  it,  yet 
if  the  king  and  his  ministers  were  free  to  spend 
money  as  they  chose,  the  demands  upon  the 
people  which  for  the  national  honor  they  must 

*  Stubbs,  CmM.  Hist.  §  354.     »  Ibid.  §  358.     '  Ibid.  §  361. 


THE  GROWTH  OF  PARLIAMENT  201 

meet  would  be  so  excessive  as  to  rob  their  right 
of  much  of  its  value.  The  solution  was  some 
sort  of  ministerial  control  by  parliament.  This 
fact  was  early  recognized,  yet  it  is  strange  that 
the  first  step  in  this  direction  was  taken  by  the 
king,  and  stranger  yet  that  those  who  would  most 
benefit  by  such  control  refused  to  assume  it. 

As  early  as  1237  Henry  III,  when  in  great 
need  of  money,  offered  to  allow  the  aid  which 
he  desired  from  the  Great  Council  to  be  spent 
by  a  commission  elected  by  the  barons  and 
prelates.  He  was  refused  and  next  offered  to 
dismiss  all  his  counselors  and  to  accept  as  ad- 
visers three  nobles  named  by  the  barons.  Finally 
it  was  arranged  that  three  barons  be  added 
to  the  king's  council.*  This  seems  to  be  the 
first  instance  of  any  suggestion  of  direct  con- 
trol in  ministerial  action  by  the  people,  although 
the  election  of  ministers  had  before  been  at- 
tempted by  the  Great  Council.  Pembroke  had 
been  so  chosen  regent  at  a  time  when  Henry 
III  was  too  young  to  make  any  choice,  and  in 
1226,  before  the  king  emancipated  himself, 
Ralph  Neville  had  received  the  chancellorship 
by  the  assent  and  common  counsel  of  the  king- 
dom, upon  the  understanding  that  he  should 

*  Stubbs,  Const.  Hist.  §  174. 


202  THE  GROWTH  OF  PARLIAMENT 

not  be  removed  except  by  the  same  authority. 
Ten  years  later  Neville  refused  to  resign  unless 
required  by  the  body  which  had  elected  him.* 

These  precedents  were  not  of  the  greatest 
weight,  because  made  during  Henry's  minor- 
ity, but  they  do  not  stand  alone.  Other  de- 
mands for  the  election  of  ministers  were  made 
in  succeeding  years.  Thus,  in  1244,  the  Great 
Council  proposed  the  appointment  by  that  body 
of  the  justiciar,  treasurer,  and  chancellor  as  the 
condition  of  a  grant,  but  the  suggestion  came 
to  nothing.*  An  elective  ministry  was  demanded 
and  refused  repeatedly  during  Henry's  remain- 
ing years.  It  was  a  feature  of  the  Provisions 
of  Oxford,  but  was  omitted  from  the  reenact- 
ment  in  the  Statute  of  Marlborough.'  In  1310 
a  Great  Council  forced  upon  Edward  II  an 
elected  commission,  called  the  Ordainers,  by 
which  his  authority  was  superseded  until  1322. 
These  Ordainers  provided  for  the  filling  of 
the  great  offices  of  state  by  the  king,  with  the 
counsel  and  consent  of  the  baronage.  The  min- 
isters were  to  be  bound  by  oaths  in  parliament, 
and  proper  persons  were  to  be  named  to  hear 
complaints  against  the  king's  officers.    The  re- 

*  Stubbs,  Canst.  Hist.  §  171. 

2  Ibid.  §  175.  »  Ibid.  §§  176, 177. 


THE  GROWTH  OF  PARLIAMENT  203 

form  was  not  permanent,  for  the  commons, 
except  in  hearing  the  oaths,  had  no  share  in 
the  matter.*  Indeed,  election  of  ministers  was 
not  the  manner  by  which  parliament  was  to 
get  control  of  the  executive,  although  it  did 
not  cease  its  attempts  in  this  direction. 

The  year  1341  found  Edward  III  in  finan- 
cial difficulties  which  forced  him  to  grant  and 
seal  a  statute  requiring  the  chancellor,  judges, 
and  other  great  officers  to  be  named  by  the 
king  in  parliament  and  there  sworn,  but  Ed- 
ward immediately  revoked  it  in  council  and 
got  the  next  parliament  to  repeal  it.'  A  similar 
demand  was  made  in  1371  as  to  the  greater 
officers.^  An  ordinance  of  1377  provided  that 
during  the  minority  of  Richard  II  the  great 
officers  of  state  should  be  chosen  in  parliament, 
a  concession  which  was  the  condition  of  a  grant 
for  the  French  war.*  In  1381  parliament  se- 
cured the  resignation  of  the  chancellor  and 
the  appointment  of  a  new  one.**  Four  years 
later,  however,  Richard  refused  to  name  his 
intended  ministers   in  parliament,"   and  it  is 

»  Stubbs,  Const.  Hist.  §  251.  '  j^i^  §§  ggg,  259. 

°  2  Anson,  Law  and  Oust.  18,  19. 
*  Stubbs,  C(mst.  Hist.  §  263.  ^  Ibid.  §  264. 

'  2  Anson,  Law  and  Cust.  19. 


204  THE  GROWTH  OF  PARLIAMENT 

doubtful  if  the  ordinance  passed  for  his  minor- 
ity ever  amounted  to  more  than  formal  nomina- 
tion by  the  king  in  parliament  and  unques- 
tioning acceptance  by  that  body.*  Meanwhile 
the  council  had  become  a  power  coordinate 
with  the  king,  necessary  to  the  transaction  of 
all  the  business  which  he  did  and  acting  often 
as  a  check  upon  him.  To  the  demand  for  nomi- 
nation of  ministers  in  parUament,  the  com- 
mons now  added  a  similar  requirement  as  to 
the  members  of  the  council.  During  the  mi- 
nority of  Henry  VI  this  ideal  was  temporarily 
realized,  but  when  that  king  became  of  age,  the 
council  ceased  to  be  named  in  parliament  and 
the  commons  no  longer  strove  in  this  manner 
to  control  it.' 

The  attempt  to  control  the  election  of  min- 
isters was  no  more  efficacious  than  the  require- 
ment of  oaths  in  parliament,  yet  it  was,  as  Sir 
William  Anson  remarks,  "a  curious  antici- 
pation of  modem  practice."  What  parliament 
tried  to  do  directly  in  the  fifteenth  century,  it 
came  to  do  indirectly  under  the  cabinet  system 
three  hundred  years  later.    "The  modern  par- 

*  Stubbs,  Const.  Hist.  §  286. 

'  Stubbs,  Const.  Hist.  §  367;  2  Anson,  Law  and  Cust.  20, 
21. 


THE  GROWTH  OF  PARLIAMENT  205 

liament  is  content  with  the  power  of  making 
it  impossible  for  the  crown  to  employ  others  than 
those  whom  parliament  favours  for  the  time."  ^ 
Another  method  of  ministerial  control  was 
used  with  some  slight  success  very  often  in  the 
fourteenth  century,  and  that  was  the  appro- 
priation of  grants  of  money  to  particular  uses.* 
This  carried  with  it  from  time  to  time  the  bring- 
ing of  the  accounts  into  parliament,  and  there 
grew  up  a  custom  of  audit  which  did  much  to 
put  the  ministry  under  parliamentary  control. 
It  was  an  important  provision  of  the  statute  of 
1341,  already  referred  to,  that  commissioners 
be  elected  in  parliament  to  audit  the  accounts 
of  the  oflScers  who  had  received  money  for  the 
king.'  In  the  Good  Parliament  of  1376  an  audit 
was  demanded  by  the  speaker,*  and  in  the  last 
parliament  of  Edward  III  in  1377  the  com- 
mons petitioned  for  the  appointment  of  two 
earls  and  two  barons  as  treasurers  to  secure 
the  proper  expenditure  of  the  subsidy  granted. 
Later  in  the  same  year  the  first  parliament  of 
Richard  II  secured  the  appointment  of  two 
treasurers  to  spend  the  money  then  granted, 

*  1  Anson,  Law  and  CvM.  17. 

2  Stubbs,  Const.  Hist.  §  287. 

'  Ibid.  §  258.  *  Ibid.  §  262. 


206  THE  GROWTH  OF  PARLIAMENT 

but  John  of  Gaunt  took  the  subsidy  out  of  their 
hands.  The  next  parliament,  however,  forced 
the  account  of  the  subsidy  to  be  shown,  and 
in  1379,  the  king  being  still  in  sore  straits  con- 
ceded that  a  committee  of  retrenchment  be 
elected.*  The  commons  objected  in  1406  to 
making  a  grant  before  the  account  of  the  last 
subsidy  was  audited.  Henry  IV  replied,  "  Kings 
do  not  render  accounts,"  but  in  1407  he  vol- 
untarily laid  them  before  parhament.  The 
right  of  audit  was  never  again  formally  con- 
tested by  the  crown.' 

The  audit  was  the  strongest  influence  which 
parliament  could  in  the  Middle  Ages  bring  to 
bear  upon  the  ministers,  because  it  was  sup- 
plemented by  the  right  of  impeachment.  This 
was  first  exercised  by  the  Good  Parliament 
of  1376,  which  took  advantage  of  Edward's 
dire  need  for  supply  for  the  French  war  to 
represent  that  the  country  was  impoverished 
by  the  counselors  of  the  king,  and  that  if  the 
king  would  do  justice  to  the  offenders  he  should 
have  sufficient  money.  Charges  against  Lati- 
mer, the  king's  chamberlain,  and  Lyons,  his 
agent  with  the  merchants,  were  made  by  the 
commons  and  sustained  at  the  bar  of  the  lords. 

*  Stubbs,  Cmst.  Hist.  §  263.  *  Ibid.  §  371. 


TEE  GROWTH  OF  PARLIAMENT  207 

The  ministers,  and  with  them  some  other  of- 
fenders, were  condemned  to  imprisonment  and 
forfeiture,  but  were  restored  after  parUament 
was  dismissed  by  John  of  Gaunt.* 

Just  ten  years  later  came  the  second  im- 
peachment, that  of  Michael  de  la  Pole,  the 
chancellor,  for  alleged  maladministration.  This 
too  was  secured  because  parliament  refused 
otherwise  to  grant  money.  Another  condition 
of  the  grant  then  made  was  the  appointment 
of  a  council  of  reform  to  regulate  the  royal 
household  and  the  realm.  Richard  II  had  to 
consent,  but  immediately  induced  five  of  the 
justices  to  declare  that  parliament  had  no  right 
to  remove  his  servants  and  that  the  commis- 
sion was  unlawful  as  contrary  to  prerogative. 
War  followed,  Richard  was  forced  to  submit, 
and  in  the  next  parliament,  held  in  1388,  the 
justices  themselves  fell  under  the  third  im- 
peachment.^ When  Richard  declared  himself 
of  age  in  1389,  he  asserted  his  right  to  choose 
his  own  ministers,  and  did  in  fact  replace  a 
number,  but  the  effect  of  the  impeachments 
was  seen  when  in  1390  the  chancellor,  treas- 
urer, and  councilors  resigned  and  offered  them- 

*  Stubbs,  Cmst.  Hist.  §§  262,  263. 
'  Ibid.  §  266. 


208  THE  GROWTH  OF  PARLIAMENT 

selves  for  censure  to  parKament,  which,  finding 
no  fault  with  them,  allowed  them  to  retain  their 
offices.*  Although  politics  and  personal  dislikes 
played  a  large  part  in  the  history  of  impeach- 
ment, the  ministers  learned  that,  if  parliament 
were  alive  to  its  power,  they  had  somebody 
besides  the  king  to  reckon  with,  and  that  the 
people  had  in  their  hands  a  sanction  by  which 
they  could  enforce  faithfulness  in  office. 

We  have  in  this  chapter  traced  a  very  great 
growth  in  parliament  as  a  body  which  was  not 
confining  its  activity  to  its  own  department  of 
taxation  and  legislation,  but  was  growing  as 
well  in  deliberative  powers  and  in  control  of 
the  judiciary  and  executive.  We  have  seen 
an  assembly  which  was  fast  becoming,  as  the 
representative  of  the  people,  the  real  sovereign 
of  the  realm,  supreme  in  all  departments.  What 
of  the  share  of  the  landed  man  in  this  ?  It  must 
be  confessed  that  there  was  next  to  nothing 
in  all  this  remarkable  constitutional  develop- 
ment of  the  fourteenth  and  fifteenth  centuries 
which  was  done  by  the  landed  man  as  such. 
That  incentive  which  taxation  had  afforded 
him  to  assert  rights  against  the  king  had  ap- 
parently passed  away  with  the  transfer  of  the 

*  Stubbs,  Const.  Hist.  §  267. 


THE  GROWTH  OF  PARLIAMENT  209 

great  burden  of  taxation  from  land  to  chattels 
and  from  direct  taxes  to  customs.  And  yet 
the  men  who  were  most  influential  in  the  na- 
tion continued  to  be  the  great  landowners, 
partly  because  the  feudal  system  was  not  en- 
tirely decayed,  partly  because  the  inertia  of 
custom  kept  in  their  hands  the  power  which 
their  special  interests  had  before  won  for  them, 
and  yet  more  because  of  the  control  which  as 
landlords  they  could  still  exercise  over  their 
tenants.  Although  the  incidence  of  taxation 
changed,  we  have  again  and  again  had  occa- 
sion to  see  how  the  granting  of  money  con- 
tinued to  be  the  pivot  of  almost  every  conflict 
between  crown  and  parhament.  Perhaps,  after 
all,  the  landed  man  had  more  at  stake  in  the 
matter  of  indirect  taxation  than  his  fellow  men. 
It  was  not  the  merchants  upon  whom  the  sub- 
sidies fell,  but  the  consumer.  Roughly  speak- 
ing, the  wealthier  a  man  the  more  he  would 
consume  and  the  heavier  the  charge  he  must 
bear.  The  great  wealth  of  the  nation  was  still 
in  land,  despite  the  large  increase  in  trade. 
Hence  it  may  be  argued  that  the  large  land- 
owners continued  to  be  the  class  upon  which 
the  bulk  of  the  final  burden  of  taxation  fell. 
Of  course  the  burden  might  rest  far  more  easily 


210  THE  GROWTH  OF  PARLIAMENT 

upon  their  shoulders  than  upon  those  of  the 
poor,  but  such  had  been  the  case  when  direct 
taxes  only  were  employed.  So  practically  the 
position  of  the  landed  man  as  the  one  most 
largely  interested  in  the  matter  of  taxation  had 
changed  but  little. 

The  apparent  change,  however,  deprives 
us  of  the  clear  point  of  contact  between  the 
landed  man  acting  in  the  interest  of  his  land 
and  the  advance  of  liberty  which  we  have  here- 
tofore been  able  sometimes  to  indicate.  We 
cannot  therefore  say  that  this  movement  or  that 
was  inaugurated  to  protect  the  enjoyment  of 
landed  rights,  but  we  can  say  that  the  landed 
man  was  continually  shaping  and  controUing 
the  growth  of  the  Middle  Ages,  even  though 
his  motiye  may  not  have  been  the  protection 
of  his  land.  This  will  be  clearly  seen  if  we  ex- 
amine the  matter  of  qualifications  for  mem- 
bership in  parliament  and  for  the  exercise  of 
the  elective  franchise. 

Of  the  upper  house  of  parliament  there  can 
be  Uttle  question,  for  the  lords  were  distinct- 
ively a  body  of  large  landowners.  They  were 
the  barons  and  church  dignitaries  who  had 
long  had  the  right  to  attend  the  Great  Council. 
Tenure  was  the  original  basis  of  the  right  of 


THE  GROWTH  OF  PARLIAMENT  211 

membership  in  the  upper  branch,  and  sum- 
mons early  became  added.  Then  the  right  to 
be  summoned  became  hereditary  and  passed 
from  father  to  son  as  the  land  did.  Sometimes 
it  may  have  happened  that  men  without  the 
large  territorial  holding  called  a  barony  were 
summoned  and  transmitted  membership  to 
their  descendants,  but  it  cannot  be  doubted 
that  with  few  exceptions  the  lords,  both  lay  and 
spiritual,  had  very  large  landed  estates.*  It 
was  the  barons  who,  in  the  time  of  which  we 
have  been  treating,  took  the  lead  in  the  con- 
stitutional struggle.  Aside  from  the  influence 
which  they  had  as  landlords,  their  superior 
wealth  and  social  position  had  made  them  men 
of  greater  culture  and  business  aptitude  than 
their  fellows.  Besides  this,  they  realized  their 
position  and  felt  the  responsibility  which  it 
laid  upon  them,  while  the  people  on  their  part 
looked  to  them  as  leaders.'' 

Since  the  leaders  were  landed  men,  it  seems 
hardly  necessary  to  consider  the  standing  of 
the  followers,  but  among  them,  too,  we  shall 
find  a  preponderance  of  landowners;  hence  it 
will  be  well  to  carry  our  investigation  further. 

»  Stubbs,  Const.  Hist.  §§  190,  201. 

^  Stubbs,  Const.  Hist.  §  475;  1  Anson,  Law  and  CvM.  16. 


// 


212  THE  GROWTH  OF  PARLIAMENT 

The  represented  clergy  were  for  the  most  part 
men  whose  only  substance  was  in  the  tithes 
which  came  to  them.  As  landed  men  they 
therefore  had  no  importance,  but  on  the  other 
hand  they  early  ceased  to  have  any  influence 
in  parliament,  preferring  to  have  no  more  to 
do  with  national  affairs  than  by  their  repre- 
sentatives in  convocation  to  grant  taxes  for 
themselves.  We  are  therefore  obliged  to  con- 
sider only  the  commons,  the  representatives 
of  shire  and  borough,  and  here  we  meet  ques- 
tions of  considerable  obscurity.  The  two  classes 
of  representatives  will  best  be  taken  up  sepa- 
rately and  approached  through  the  medium  of 
the  men  who  elected  them. 

We  have  no  absolute  knowledge  as  to  who 
were  the  electors  of  the  knights  of  the  shire 
in  the  fourteenth  century.  Looking  back  to 
the  previous  century,  however,  we  find  evi- 
dence that  elections  were  held  in  the  full  county 
court,  and  such  must  have  continued  the  the- 
ory, for  in  1406  a  statute  was  enacted  requir- 
ing knights  henceforth  to  be  elected,  as  before, 
by  the  free  choice  of  the  county  court,  notwith- 
standing any  letters  or  any  pressure  from  with- 
out.* The  purity  of  county  elections  had  been 
»  Stubbs,  Cond.  Hist.  §  313. 


THE  GROWTH  OF  PARLIAMENT  213 

assailed,  possibly  by  the  return  by  the  sheriff 
of  knights  without  election.*  Such  abuses  were 
the  basis  of  a  petition  in  1376  that  the  knights 
of  the  shire  be  chosen  by  common  election  from 
the  better  folk  of  the  shires,  and  not  merely 
nominated  by  the  sheriff  without  due  election.^ 
So  undoubtedly  the  theory,  despite  abuses, 
was  that  the  full  county  court  should  be  elect- 
ors. There  is  some  doubt  whether  the  smaller 
freeholders  exercised  their  franchise  in  the 
earliest  times.  Later  it  seems  certain  that  as 
a  practical  matter  the  county  elections  were 
controlled  by  the  great  landlords  of  the  shire. 
The  mesne  tenants  were  much  under  their  in- 
fluence when  they  attended  the  court,  and  often 
they  stayed  away  altogether.'  If  any  unlanded 
men  attended,  and  it  is  doubtful  if  any  did, 
they  too  must  have  had  little  independent  in- 
fluence. The  knights  whom  the  county  elected 
could  not  therefore  fail  to  be  men  who  them- 
selves had  a  great  deal  of  land  or  were  in  sym- 
pathy with  landed  interests.*  The  preponder- 
ant influence  of  landed  men  was  well  illustrated 

*  Stubbs,  Canst.  Hist.  §  296. 

2  Ibid.  §  262.  '  Ibid.  §  217. 

*  After  1445,  no  knight  could  be  returned  unless  he  had  land 
of  annual  value  of  £20. 


214  THE  GROWTH  OF  PARLIAMENT 

by  the  refusal  of  parliament  in  1381  to  approve 
the  promise  made  by  Richard  II  that  villeinage 
should  be  aboHshed.*  The  great  landlords  were 
determined  to  keep  the  upper  hand.  This  jeal- 
ousy of  their  influence  extended  even  to  the  de- 
sire to  keep  others  from  gaining  the  power  which 
accompanied  land,  for  in  1391  parliament  peti- 
tioned the  king  to  forbid  villeins  to  advance 
themselves  and  their  descendants  by  acquiring 
land  or  educating  their  children.  Fortunately 
the  petition  was  denied.''  Finally,  in  1430,  the 
county  franchise  was  by  statute  definitely  con- 
fined to  freeholders  of  405.  income.  That  this 
limitation  of  the  electorate  to  landowners  did 
not,  as  a  practical  matter,  disfranchise  anybody 
of  any  influence  is  proved  by  the  fact  that  the 
complexion  of  the  knights  returned  was  not 
changed.  Probably  indeed  only  landowners  had 
voted  before." 

The  borough  franchise  and  the  borough 
representatives,  it  is  likely,  were  scarcely  less 
under  the  control  of  landed  interests.  In  the 
matter  of  the  franchise,  however,  there  is  much 
obscurity,  for  there  was  no  uniform  type  of 
borough.    The  town  meeting  was  formed  upon 

»  Stubbs,  Canst.  Hist.  §  264. 

2  Ibid.  §  267.  «  Ibid.  §  335. 


THE  GROWTH  OF  PARLIAMENT  215 

several  different  plans.  In  one  place  it  included 
all  of  the  householders,  in  another  all  who  paid 
"scot  and  lot"  (a  contribution  or  rate  for  local 
and  national  purposes),  in  another  those  who 
held  by  burgage  tenure,  in  still  another  the 
members  of  the  merchant  or  trade  guilds. 
Sometimes  the  election  was  not  in  town  meet- 
ing, but  by  the  municipal  government.*  The 
ancient  basis  was  undoubtedly  tenure,  and  a 
large  proportion  of  the  electors  always  contin- 
ued to  claim  their  franchise  under  some  sort 
of  real-estate  holding.  The  better  men  would 
undoubtedly  usually  be  elected,  and  if  they 
were  "better"  according  to  the  old  tradition, 
they  would  be  freeholders.  In  any  event,  the 
landed  men  very  likely  predominated  with  very 
few  exceptions  during  the  Middle  Ages  over 
the  electorate  and  the  representatives  of  the 
boroughs.  The  petitions  of  the  Good  ParUa- 
ment  in  1376  for  the  enforcement  of  the  Statute 
of  Laborers  Umiting  wages,  for  the  restriction 
of  the  right  of  common  in  towns,  for  the  lim- 
itation of  the  powers  of  chartered  crafts,  may 
prove  either  or  both  of  two  propositions:  (1) 
that  the  burghers  were  less  powerful  than  the 
landed  men  in  parUament,  (2)  that  the  landed 

*  Stubbs,  Canst.  Hist.  §  212. 


216  THE  GROWTH  OF  PARLIAMENT 

men  overshadowed  the  burghers  at  home.* 
The  whole  parUamentary  organization  of  the 
Middle  Ages  was  in  the  control  of  the  landed 
man,  who  therefore  must  be  accounted  a  prime 
factor  in  all  the  constitutional  growth  which 
we  have  been  reviewing. 

Another  argument,  although  more  briefly 
stated,  is  of  still  more  importance.  History, 
we  must  always  remember,  is  the  record  of 
development,  the  sequence  of  cause  and  effect. 
One  stage  of  the  growth  of  English  liberty  we 
have  been  studying  in  this  chapter,  and  so  far 
we  have  sought  its  explanation  only  in  the  in- 
fluence of  contemporary  landed  men.  Great 
as  this  influence  undoubtedly  was,  we  might 
almost  disregard  it  and  depend  for  the  strength 
of  our  argument  upon  a  cause  more  remote 
but  no  less  potent.  The  developments  of  the 
Middle  Ages  were  the  resultants  of  all  that 
had  gone  before,  and  particularly  of  the  prin- 
ciple of  representation  in  taxation  which  the 
landed  man  had  established  for  the  protection 
of  his  real  property.  It  mattered  not  at  all,  so 
firmly  was  that  principle  grounded  by  its  au- 
thors, that  the  incidence  of  taxation  to  a  con- 
siderable extent  changed.  A  rule  so  broad  in 
*  Stubbs,  Cmst.  Hist.  §  262. 


THE  GROWTH  OF  PARLIAMENT  217 

theory  must  find  the  broadest  application. 
Hence,  because  landed  men  in  the  interests 
of  their  land  had  raised  a  cry  of  "no  taxation 
without  representation,"  the  merchants  and 
burgesses  of  the  Middle  Ages  enjoyed,  as  a 
matter  of  course,  the  similar  right  as  to  per- 
sonal property  and  indirect  taxation.  Even 
had  the  balance  of  power  in  the  Middle  Ages 
passed  from  the  landowners  to  their  humbler 
brethren,  the  landed  man  would  still  have  been 
the  chief  cause  of  the  effects  which  we  have 
lately  been  tracing.  Let  it  be  borne  in  mind, 
now  and  throughout  the  later  discussion,  that 
contemporary  causes,  while  important,  are 
really  secondary  to  the  first  cause  of  earlier 
times,  —  the  landed  man  acting  in  the  inter- 
ests of  his  land. 


vin 

THE    FINAL    STRUGGLE    FOE    LIBERTY 

The  Middle  Ages  saw  parliament  coming  into 
a  supremacy  which  seemed  almost  won,  but  in 
consequence  of  internal  dissension  the  final 
victory  was  deferred  for  two  hundred  years. 
Just  as  the  constitutional  rule  of  the  Lancas- 
trian kings  began  to  give  promise  that  popular 
rights  were  becoming  fixed,  the  Wars  of  the 
Roses  disturbed  the  growing  security  of  Hb- 
erty.  The  Yorkist  kings  tended  to  the  exer- 
cise of  arbitrary  power,  and  even  had  they  not, 
the  progress  of  civil  war  would  alone  have  been 
sufficient  to  interrupt  the  rule  of  constitutional 
principles.  The  Tudor  monarchs  did  indeed 
restore  the  constitutional  forms,  yet  their  reigns 
were  in  fact  those  of  absolute  sovereigns. 

The  general  temper  of  the  subjects  of  the 
Tudors  was  that  of  men  who  had  lost  not  so 
much  their  high  ideals  of  Hberty,  as  the  en- 
ergy to  enforce  their  rights.  They  were  satis- 
fied with  the  formal  recognition  of  sorely  won 
franchises,    and   regularly   exercised   them   in 


THE  FINAL  STRUGGLE  FOR  LIBERTY     219 

subservience  to  the  wishes  of  the  crown.  This 
indifference  was  the  result  of  the  exhaustion 
in  which  the  Wars  of  the  Roses  had  left  the 
people.  The  feudal  nobility  having  been  broken 
to  pieces  and  their  ranks  sadly  depleted  by  the 
sword  of  war  and  the  axe  of  execution,*  the 
commons  were  deprived  of  their  long-time 
leaders.  Unable  by  themselves  to  rise  in  re- 
sistance to  prerogative,  all  that  they  desired 
was  to  be  left  alone  to  pursue  the  arts  of  peace; 
hence  they  were  quite  ready  to  uphold  the 
skilful  administrative  hands  of  the  Tudors. 
The  church  was  thus  the  only  power  left  to 
oppose  the  crown,  and  the  reformation  soon 
turned  all  its  great  influence  to  the  support 
of  the  king  who  became  its  new  head.^  It  was 
not  until  the  increase  of  commerce  and  the 
great  prosperity  which  followed  new  discov- 
eries had  enabled  the  middle  classes  to  be- 
come rich  and  acquire  land,  until  they  and  the 
older  landed  gentry  grew  to  have  an  inde- 
pendent spirit  which  raised  new  leaders,  and 
until  the  intellectual  impulse  of  printing  and 
the  Reformation  had  aroused  the  nation  at 
large  to  a  fresh  reahzation  of  the  value  of  lib- 

*  Dicey,  Priv.  Coun.  77,  78. 

^  Dicey,  Priv.  Coun.  79,  86,  87;  1  Anson,  Law  and  Oust.  20. 


220     THE  FINAL  STRUGGLE  FOR  LIBERTY 

erty,  —  it  was  not  until  then  that  the  subject 
was  again  able  to  claim  for  his  own  benefit  the 
liberties  the  Tudors  had  kept  only  formally 
aUve. 

The  way  in  which  the  Tudors  controlled 
every  branch  of  the  government  and  made  all 
popular  influences  subservient  must  be  seen 
in  order  that  we  may  fully  realize  the  scope 
of  the  reaction  for  liberty  in  Stuart  times.  In 
legislation  the  Tudors  resorted  to  parUament  in 
many  important  matters,  and  indeed  might 
have  done  so  with  safety  in  all,  for  the  legis- 
lature always  obediently  passed  the  measures 
which  the  crown  proposed.  But  it  was  found 
convenient  for  the  king  in  council  to  issue 
independently  proclamations  which  had  the 
force  of  statutory  law.  This  form  of  legislation 
was  used  more  frequently  and  sweepingly  than 
its  long-disused  progenitor,  the  ordinance.  By 
it  were  created  new  laws,  new  criminal  offenses, 
and  new  punishments,  which  found  rigorous 
enforcement  in  the  Star  Chamber.  Parhament 
became  sponsor  for  this  system  by  enacting 
in  1539  that  such  proclamations  "  should  be  ob- 
served and  kept  as  though  they  were  made  by 
an  act  of  parliament."  A  repeal  of  the  Statute  of 
Proclamations  in  the  first  year  of  Edward  VI 


THE  FINAL  STRUGGLE  FOR  LIBERTY     221 

made  no  real  change,  for  although  the  courts 
under  Mary  declared  that  proclamations  could 
not  impose  any  new  fine,  forfeiture,  or  impris- 
onment, nor  make  a  new  law,  both  Mary  and 
Elizabeth  continued  the  evil.* 

In  the  raising  of  taxes  the  crown  in  Tudor 
times  was  equally  independent  of  parliament. 
Henry  VII  was  so  successful  in  his  unconsti- 
tutional exactions  that  during  the  last  seven 
years  of  his  reign  he  had  to  call  parliament  but 
once.  One  of  his  great  sources  of  income  was 
the  "benevolence."  In  1473  Edward  IV  had 
instituted  this  impost  by  calling  for  "freewill 
offerings"  from  subjects  who  were  unable  to 
refuse  to  be  benevolent.  The  parliament  of 
Richard  III  attempted  in  1484  to  stop  this 
abuse  by  a  statute  forbidding  the  exaction, 
but  within  a  few  months  Henry  VII  succeeded 
to  the  throne  and  restored  the  tax.^  Another 
Tudor  exaction  was  the  "loan,"  which  was 
repeatedly  required.  One  instance  of  this  will 
sufficiently  illustrate  its  nature.  In  1588  Eliza- 
beth and  the  Privy  Council  ordered  the  Lords 

*  1  Anson,  Law  and  Cust.  260,  261 ;  Dicey,  Priv.  Court.  92, 
93. 

2  Stubbs,  Cmst.  Hist.  §§  359,  361,  373;  Gneist,  Eng.  Pari. 
199. 


222     THE  FINAL  STRUGGLE  FOR  LIBERTY 

Lieutenant  of  the  counties  to  return  lists  of 
such  men  as  could  afford  to  loan  sums  of  £25 
and  more  to  the  crown,  the  amounts  for  which 
each  could  be  held  to  be  reported.  On  the 
basis  of  these  returns  requisitions  under  the 
privy  seal  were  sent  to  individuals,  and  re- 
fusal to  pay  put  one  at  the  mercy  of  the  Star 
Chamber.* 

Nor  were  benevolences  and  forced  loans  the 
sole  means  by  which  the  Tudors  showed  their 
absolutism  in  taxation.  Parliament  allowed 
Henry  VIII  to  take  more  subsidies  than  all 
his  predecessors  had  raised.^  Under  Mary 
and  Ehzabeth  not  only  did  it  readily  grant  when 
asked;  it  permitted  the  crown  to  deal  vrith 
the  customs  without  even  asking  its  leave.  After 
the  regular  granting  of  tunnage  and  poundage 
began  in  1373,  there  was  no  demand  by  the 
sovereign  for  customs  in  addition  for  over 
one  hundred  and  fifty  years.  Then  Mary  laid 
a  duty  on  cloths  exported  and  French  wines 
imported  without  parhamentary  consent.  Eliza- 
beth took  an  impost  on  sweet  wines  through- 

*  See  for  the  letter  of  the  council  and  requisition,  Prothero, 
Select  Statutes  and  Other  Constitviional  Documents  Illustrative 
of  the  Reigns  of  Elizabeth  and  James  I  (2d  ed.)  134-137. 

*  Gneist,  Eng.  Pari  199. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     223 

out  her   reign  and  there  was  never  a  pro- 
test.» 

The  crown  was  also  absolute  in  the  de- 
partment of  administration.  The  judges  were 
subservient,  parUament  was  subservient,  the 
officers  of  state  and  the  Privy  Council  were 
subservient.  Only  now  and  then  did  parlia- 
ment make  any  complaint  of  fiscal  and  other 
ministerial  abuses.^  Impeachment  was  never 
resorted  to.  The  council,  no  longer  composed 
of  men  of  high  nobiUty  and  great  landed  wealth, 
was  a  tool  of  the  crown.'  Such  a  body  could 
readily  be  used  for  oppression  in  public  busi- 
ness, but  it  was  in  its  judicial  phase,  as  the 
Court  of  Star  Chamber,  that  the  Privy  Coun- 
cil became  the  most  effective  instrument  of 
the  king.  In  this  court  was  exercised  all  the 
indefinite  residual  jurisdiction  of  the  crown. 
At  first  its  action  was  beneficent  in  that  it  gave 
cheap  and  ready  redress  to  the  poor  against 
the  rich,  but  it  soon  degenerated  into  a  tribunal 
for  the  enforcement  of  proclamations,  for 
the  punishment  of  political  offenders,  for  the 

*  1  Anson,  Law  and  Oust.  274,  275;  Prothero,  Sd.  Stat.  (2d 
ed.)  Ixxiii. 

2  Gneist,  Eng.  Pari.  200. 

*  Dicey,  Priv.  Coun.  85;  1  Anson,  Law  and  Cust.  20,  21;  2 
Ibid.  23. 


224     THE  FINAL  STRUGGLE  FOR  LIBERTY 

restraint  of  free  speech.  "No  rank  was  ex- 
alted enough  to  defy  its  attacks,  no  insignifi- 
cance sufficiently  obscure  to  escape  its  notice."  * 
It  tried  everything  from  petty  police  matters 
up  to  libel,  from  alleged  seditious  speeches 
and  writings  down  to  private  family  and  neigh- 
borhood quarrels.'  It  interfered  with  com- 
mon law  causes  pending  by  arbitrarily  im- 
prisoning suitors  and  officers  of  the  law.'  Its 
process  was  terrible.  On  a  charge  based  upon 
hearsay  or  secret  information,  the  offender 
might  be  privately  accused,  arrested,  and  ar- 
raigned. Without  being  confronted  with  his 
accuser  or  being  sufficiently  informed  of  the 
nature  of  the  offense,  he  might  be  pressed,  even 
tortured,  to  confess.  A  confession  led  to  im- 
mediate sentence,  while  a  refusal  to  answer 
brought  imprisonment  until  more  formal  pro- 
ceedings could  be  had.  These  were  begun  by 
a  bill  of  complaint  addressed  to  the  council 
and  signed  by  a  councilor,  after  which  subpoena 
issued.  Upon  his  arraignment  the  prisoner 
was  put  upon  oath  and  asked  to  answer  the 

*  Dicey,  Priv.  Court.  95. 
2  Ibid.  105-112. 

'  See  the  complaint  of  the  judges  in  1591,  Prothero,  Sd.  Stat. 
(2d  ed.)  446. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     225 

bill.  If  he  refused,  he  was  summarily  com- 
mitted. If  he  answered,  he  was  then  examined 
by  the  plaintiff  upon  written  interrogatories, 
and  indefinite  imprisonment  was  the  penalty 
of  a  refusal  to  reply  to  any  of  them.  After  the 
prisoner  had  completed  his  answers,  witnesses 
for  the  plaintiff  were  privately  examined,  and 
then  the  council  (when  in  judicial  session 
called  the  Court  of  Star  Chamber)  gave  sen- 
tence of  fine,  imprisonment,  pillory,  loss  of 
ears,  whipping,  or  anything  else  short  of  death.  ^ 
That  a  people  by^  whom  free  institutions 
had  so  long  ago  and  in  so  large  a  measure  been 
won  should  for  many  years  endure  such  ar- 
bitrary assumptions  on  the  part  of  the  crown 
proves  the  utter  subservience  into  which  they 
had  fallen  from  mere  exhaustion  after  the  Wars 
of  the  Roses,  and  in  which  they  were  kept  by 
the  manipulations  of  the  sovereign.  The  veto 
was  not  much  used  by  the  Tudors,  because 
they  packed  their  parliaments  and  kept  the 
upper  hand  over  them.*  A  favorite  method 
of  doing  this  was  to  enfranchise  new  boroughs. 
Edward  VI  added  22  members  to  the  commons, 
Mary  14,  Elizabeth  62;  and  thus  a  strong  court 

*  Dicey,  Priv.  Coun.  102-105. 

*  1  Anson,  Law  and  Cust.  254. 


226     THE  FINAL  STRUGGLE  FOR  LIBERTY 

party  was  maintained  in  parliament.  When 
this  was  thought  not  to  be  needful,  there  re- 
mained the  constant  source  of  control  obtained 
by  recommending  or  commanding  the  sheriffs 
or  electors  to  make  returns  of  certain  people.* 
Thus,  in  the  seventh  year  of  Edward  VI  the 
sheriff  was  enjoined  to  return  certain  persons 
pointed  out  by  the  king.  The  writs  of  the  sec- 
ond year  of  Mary  called  for  "  men  of  the  wise, 
serious,  catholic  sort."  Elizabeth  secured  the 
election  to  parliament  of  many  court  oflBicials 
and  other  dependants.^ 

In  spite  of  the  general  subservience  of  the 
commons,  there  were  occasional  sparks  of 
hope  in  the  tenacity  with  which  they  claimed 
certain  privileges  for  the  house.  A  contested 
election  in  1586  was  decided  by  the  Lord  Chan- 
cellor and  the  judges,  but  commons  refused 
to  accept  the  decision  and  itself  investigated 
the  returns.  Its  conclusions  were  the  same 
as  those  of  the  other  tribunal,  but  were  ex- 

*  1  Anson,  Law  and  Oust.  284,  285. 

^  Gneist,  Eng.  Pari.  196.  Elizabeth  and  the  council  in  1570 
appointed  Archbishop  Parker  and  Lord  Cobham  to  confer  with 
the  sheriff  of  Kent,  the  oflBcers  of  boroughs,  and  other  leading 
men  for  the  seemingly  virtuous  purpose  of  securing  that  "the 
persons  to  be  chosen  may  be  well  qualified."  Prothero,  Sd. 
sua.  (2d  ed.)  441. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     227 

pressed  to  be  "not  out  of  any  respect  the  said 
House  had  or  gave  to  the  resolution  of  the 
Lord  Chancellor  and  Judges  therein  passed, 
but  merely  by  reason  of  the  resolution  of  the 
House  itself,  by  which  the  said  election  had 
been  approved."  It  was  also  resolved  that 
"there  should  no  message  be  sent  to  the  Lord 
Chancellor,  not  so  much  as  to  know  what  he 
had  done  therein,  because  it  was  conceived 
to  be  a  matter  derogatory  to  the  power  and 
privilege  of  the  said  House."  ^  Late  in  Eliza- 
beth's reign,  however,  we  find  the  Privy  Coun- 
cilors in  the  commons  and  thirty  other  mem- 
bers canvassing  and  reporting  contested  elec- 
tions, so  that  the  privilege  of  the  house  to  judge 
the  returns  and  qualifications  of  its  own  mem- 
bers  was  not  perfectly  freed  of  crown  inter- 
ference.* 

About  the  privilege  of  free  speech  in  parlia- 
ment there  was  much  difference  between  Eliza- 
beth and  the  commons.  In  1566  the  queen 
ordered  the  commons  to  cease  the  discussion 
of  her  marriage.  This  aroused  a  remonstrance, 
and  Elizabeth  withdrew  her  command."  Yet 
in  1571  she  enjoined  parUament  not  to  meddle 

»  Prothero,  Sd.  Stai.  (2d  ed.)  130. 
'  Ibid.  118.  »  Ibid.  118. 


228     THE  FINAL  STRUGGLE  FOR  LIBERTY 

with  matters  of  state  except  such  as  were  pro- 
pounded to  them.  The  commons  fared  better 
when  in  the  same  year  Mr.  Strickland  was 
forbidden  by  the  crown  to  attend  parliament 
because  he  had  offered  a  bill  against  the  pre- 
rogative of  the  crown.  A  remonstrance  that 
the  accused  ought  to  be  made  to  appear  and 
answer  for  his  offense  (if  any)  at  the  bar  of 
the  house  caused  the  removal  of  the  inhibition.* 
Only  five  years  later  Peter  Wentworth  in  a 
speech  in  the  commons  made  the  astounding 
proposition  that  the  queen  was  under  the  law, 
that  a  part  of  the  law  was  freedom  of  speech 
in  parliament,  and  hence  that  the  queen  had 
no  right  to  repress  it.  Elizabeth's  reply  was 
the  commitment  of  Wentworth  to  the  Tower.'* 
A  similar  speech  by  the  same  offender  in  1587 
was  punished  in  the  same  manner. 

From  the  year  1541  the  speaker  at  the  open- 
ing of  the  session  regularly  claimed  for  the 
members  of  the  house  freedom  of  discussion, 
free  access  to  the  person  of  the  sovereign,  and 
freedom  from  civil  arrest.*  The  commons 
soon  began  to  try  its  own  members  when  charged 

*  Prothero,  Sd.  Stat.  (2d  ed.)  119. 

2  Ibid.  121, 122.  '  Ibid.  123, 124. 

*  For  a  sample  of  such  claim,  see  Ibid.  117. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     229 

with  an  offense,  yet  Elizabeth  often  impris- 
oned members  arbitrarily.*  The  crown  never 
fully  acceded  to  the  speaker's  claims  and  al- 
most always  denied  them  flatly.  Parliament, 
in  the  view  of  the  Tudor  kings,  had  no  power 
of  initiative  in  taxation  and  legislation,  and 
could  do  no  more  than  answer  yes  or  no  to  the 
crown's  propositions.  Commoners  who  too 
freely  claimed  larger  privileges  were  summoned 
before  the  council,  committed  to  prison,  and 
forbidden  to  attend  until  further  notice.^  The 
kingly  position  cannot  more  clearly  be  ex- 
pressed than  in  the  words  of  Elizabeth,  who 
in  1593  replied  to  the  customary  demands  for 
privileges,  "Privilege  of  speech  is  granted,  but 
you  must  know  what  privilege  you  have;  not 
to  speak  every  one  what  he  listeth,  or  what 
Cometh  in  his  brain  to  utter  that;  but  your 
privilege  is  aye  or  no.'* " 

The  whole  matter  of  the  prerogative  was 
a  vexed  question.    Not  only  was  there,  as  to 

*  Gneist,  Eng.  Pari,  201,  202. 

'  1  Anson,  Law  and  Cust.  140. 

^  Prothero,  Sd.  Stat.  (2d  ed.)  124, 125.  How  little  real  free- 
dom of  speech  was  possible  in  England  is  shown  by  the  fact  that 
during  Elizabeth's  reign  at  least  ten  statutes  were  enacted  touch- 
ing treason  and  seditious  words,  while  the  council  passed  sev- 
eral Star  Chamber  ordinances  for  censorship  of  the  press. 


230     THE  FESTAL  STRUGGLE  FOR  LIBERTY 

where  the  prerogative  began  and  where  it 
ended,  a  doubt  which  was  more  and  more 
bringing  the  crown  and  parliament  into  dis- 
pute, but  there  was  also  on  the  part  of  the  sov- 
ereign a  continuous  insistence  that,  whatever 
its  bounds,  prerogative  was  not  to  be  discussed 
by  the  legislature.  Even  in  the  commons  there 
was  a  serious  division  of  opinion  as  to  the  ex- 
tent to  which  parhament  might  go  in  the  mat- 
ter of  checking  the  crown.  In  1601  there  was 
an  earnest  debate  in  the  commons  as  to  whether 
parhament  could  by  statute  restrict  the  trade 
monopolies  which  Elizabeth  had  granted  her 
favorites.  Sir  Francis  Bacon  said  that  such 
legislation  was  unconstitutional  and  that  the 
only  remedy  was  petition  and  grant  by  the 
queen.  Parliament  did  not  have  to  test  its 
rights,  however,  as  Elizabeth  became  some- 
what alarmed  and  promised  to  withdraw  all 
patents  of  monopolies  not  for  the  good  of  the 
people.* 

From  the  foregoing  bare  outUne  something 
of  the  serious  problem  before  the  lovers  of  lib- 
erty at  the  opening  of  the  seventeenth  cen- 
tury must  be  apparent.  But  we  have  not  yet, 
perhaps,  seen  how  deep  seated  in  the  mind 
*  Prothero,  Set.  Stat.  (2d  ed.)  116. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     231 

of  royalty  the  notion  of  prerogative  had  be- 
come. Since  the  Reformation  had  brought 
the  church  under  the  domination  of  the  king 
there  had  grown  up  under  the  teaching  of 
ecclesiastics  that  theory  of  divine  right  which 
made  prerogative  not  merely  a  political  right, 
but  also  a  sacred  attribute  which  it  were  al- 
most blasphemy  to  question.  This  theory  found 
in  the  Stuarts  most  vigorous  adherents,  and 
the  problem  of  prerogative  grew  in  gravity. 
Fortunately  for  our  liberties,  the  increase  in 
the  claims  of  royalty  was  met  by  a  larger  claim 
from  the  subject  for  political  rights  and  a  per- 
sistent denial  on  the  part  of  the  new  sects  of 
Puritans  and  Non-Conformists  of  the  assump- 
tion by  royalty  of  quasi-divinity.  The  words 
of  James  I  himself  will  serve  to  bring  before 
our  minds  the  real  fashion  of  the  new  garment 
which  prerogative  had  assumed. 

"Kings  are  not  only  God's  lieutenants  upon 
earth  and  sit  upon  God's  throne,  but  even  by 
God  himself  they  are  called  gods.  ...  As  to 
dispute  what  God  may  do  is  blasphemy,  .  .  . 
so  is  it  sedition  in  subjects  to  dispute  what  a 
king  may  do  in  the  height  of  his  power.  .  .  . 
I  will  not  be  content  that  my  power  be  dis- 
puted  upon.  .  .  .  Do   not   meddle   with   the 


232     THE  FINAL  STRUGGLE  FOR  LIBERTY 

main  points  of  government:  that  is  my  craft: 
...  I  must  not  be  taught  my  office.  I  would 
not  have  you  meddle  with  such  ancient  rights 
of  mine  as  I  have  received  from  my  predeces- 
sors. .  .  .  All  novelties  are  dangerous."  *  And 
to  the  judges  James  said:  "First,  encroach 
not  upon  the  prerogative  of  the  crown.  .  .  . 
That  which  concerns  the  mystery  of  the  king's 
power  is  not  lawful  to  be  disputed;  for  that  is 
to  wade  into  the  weakness  of  princes,  and  to 
take  away  the  mystical  reverence  that  belongs 
unto  them  that  sit  in  the  throne  pf  God.  Sec- 
ondly, that  you  keep  yourselves  within  your 
own  benches.  ...  As  for  the  absolute  pre- 
rogative of  the  crown,  that  is  no  subject  for  the 
tongue  of  a  lawyer,  nor  is  lawful  to  be  disputed. 
It  is  atheism  and  blasphemy  to  dispute  what 
God  can  do:  good  Christians  content  them- 
selves with  his  will  revealed  in  his  word,  so 
it  is  presumption  and  high  contempt  in  a  sub- 
ject to  dispute  what  a  king  can  do,  or  say  that 
a  king  cannot  do  this  or  that;  but  rest  in  that 
which  is  the  king's  revealed  will  in  his  law."  ^ 

^  Speech  of  James  I  before  parliament,  March  21,  1610. 
Prothero,  Sel.  Stat.  (2d  ed.)  293.  The  commons  replied  by  a  pe- 
tition claiming  the  right  of  free  speech  in  discussing  the  pre- 
rogative wherever  it  affected  the  subject.   Ibid.  296. 

'  Speech  in  Star  Chamber,  June  20,  1616.    Ibid.  399. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     233 

Over  against  this  assumption  of  absolutism 
stood  the  new-risen  middle  class  which  now 
became  the  power  of  first  importance  in  the 
battle  of  liberty.  The  commons,  although 
growing  in  influence  during  the  Middle  Ages, 
was  then  always  led  by  the  barons.  For  a  cen- 
tury and  a  half  they  had  been  leaderless,  and, 
from  lack  of  experience  and  energy,  quite 
powerless  to  check  the  aggressions  of  royalty. 
Now  they  had  increased  in  substance  and  in- 
telligence, while  leaders  of  the  highest  ability 
had  risen  from  their  own  ranks.  It  was  this 
well-to-do  middle  class,  of  landed  possessions 
neither  the  largest  nor  the  smallest,  which  bore 
the  brunt  of  the  battle  in  parliament;  even  as, 
supported  by  the  smaller  landowners  down  to 
the  405.  freeholders,  it  stood  in  the  peace  sys- 
tem and  jury  system  of  the  counties  as  the  final 
bulwark  of  civil  liberty. 

The  very  first  commons  of  James  I,  com- 
posed of  just  such  men,*  showed  in  its  apology 
to  the  king  ^  a  true  grasp  of  the  difficulty  of 
their  position.      "What  cause  we  your  poor 

*  There  were  231  knights,  140  esquires,  71  gentlemen,  9 
wholesale  merchants,  1  mayor,  9  aldermen,  4  doctors  of  law, 
1  sergeant  at  law.   Gneist,  Eng.  Pari.  212. 

"  Prothero,  Sd.  Stat.  (2d  ed.)  286,  289. 


234     THE  FINAL  STRUGGLE  FOR  LIBERTY 

Commons  have  to  watch  over  our  privileges, 
is  manifest  in  itself  to  all  men.  The  prerogatives 
of  princes  may  easily,  and  do  daily  grow:  the 
privileges  of  the  subject  are  for  the  most  part 
at  an  everiasting  stand.  They  may  be  by  good 
providence  and  care  preserved,  but  being  once 
lost  are  not  recovered  but  with  much  disquiet." 
The  words  were  truly  prophetic  of  what  was 
soon  to  take  place. 

This  same  first  parKament  won  through  a 
compromise  a  notable  victory.  James  in  his 
proclamation  *  for  the  election  of  the  commons 
had  instructed  the  sheriffs  to  return  no  bank- 
rupts or  outlaws.  Sir  Francis  Goodwin  was 
returned  from  Bucks  and,  being  an  outlaw, 
was  rejected  by  the  clerk  of  the  crown,  who 
issued  a  new  writ  on  which  Sir  John  Fortescue 
was  returned.  Parliament  was  of  the  opinion 
"that  the  freedom  of  election  was  .  .  .  extremely 
injured"  ^  and  declared  Goodwin  elected.  The 
ensuing  dispute  between  crown  and  parlia- 
ment ended  in  a  compromise;  neither  contest- 
ant was  seated,  and  a  new  election  was  had.' 
Never  again,  however,  did  the  crown  question 

1  Prothero,  Sd.  Stat.  (2d  ed.)  280. 
'  See  the  Apology,  Ibid.  286,  289. 
■  For  proceedings,  see  Ibid.  325-331. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     235 

the  right  of  the  commons  to  judge  the  returns 
of  its  members.* 

As  his  predecessors  had  done,  James  tried  to 
create  a  court  party  in  parUament,  but  popu- 
lar opinion  had  grown  so  intense  that  he  had 
to  depend  for  the  carrying  out  of  his  arbitrary 
will  upon  extra-parliamentary  acts.  He  made 
in  council  proclamations  for  the  censorship  of 
the  press,  and  these  were  enforced  in  the  Court 
of  Star  Chamber.^  By  proclamations  also  "he 
interfered  with  personal  liberty  and  freedom 
of  trade,  bidding  country  gentlemen  to  leave 
London  and  go  and  maintain  hospitality  in 
their  own  houses,  forbidding  the  increase  of 
buildings  about  London,  and  the  making  of 
starch  out  of  wheat." "  Sir  Edward  Coke,  when 
asked  by  the  council  for  his  opinion  upon  such 
proclamations,  replied  that:  (1)  a  proclama- 
tion could  not  change  the  law  or  create  a 
new  ojffense,  (2)  the  king  had  no  prerogative 
but  what  the  law  allowed,  (3)  the  king  might 
admonish  all  subjects  to  keep  the  laws,  and 
neglect  of  such  a  proclamation  would  aggra- 
vate the  offense,  (4)  the  prohibition  of  an  act 

*  1  Anson,  Law  and  CvM.  151, 

'  See  examples  in  Prothero,  Sd.  Stat.  (2d  ed.)  394,  395. 

'  1  Anson,  Law  and  Cud.  261,  262. 


236     THE  FINAL  STRUGGLE  FOR  LIBERTY 

not  punishable  in  the  Star  Chamber  could  not 
make  it  punishable  there.*  Proclamations  were 
nevertheless  continually  issued,  but  after  the 
abolition  of  the  Star  Chamber  the  abuse  died 
out,  since  the  remaining  tribunals,  the  common 
law  courts,  assumed  the  attitude  of  Coke.^ 

James  most  offended  his  parliaments  by  his 
proclamations  imposing  extraordinary  taxes. 
As  had  always  been  the  case,  the  battle  was 
hottest  where  taxation  was  concerned.  Un- 
able to  keep  his  expenditures  within  the  Umits 
of  parliamentary  grants,  James  by  letters 
patent  increased  the  duty  on  tobacco  from  2d. 
to  65.  lOd.  a  pound,  and  upon  currants  from 
25.  Qd.  to  7s.  Qd.  One  merchant,  named 
Bates,  was  rash  enough  to  refuse  to  pay  the 
additional  tax  on  currants,  and,  when  pro- 
ceeded against  in  the  Court  of  Exchequer, 
pleaded  the  statute  granting  2s.  6d.  The 
subservient  judges  decided  for  the  crown,  upon 
the  ground  that  foreign  trade  was  a  matter  of 
general  policy  falling  within  the  discretionary 
power  of  the  king,  whose  wisdom  in  its  exercise 
was  not  to  be  disputed  by  a  subject." 

*  12  Coke's  Reports,  74,  76. 

*  1  Anson,  Law  and  Cust.  263. 

'  2  State  Trials,  371;  Lane's  Reports,  22. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     237 

This  was  in  1606.  James  was  so  much  en- 
couraged that  two  years  later  he  arbitrarily 
raised  the  duties  upon  all  sorts  of  merchan- 
dise. In  1610  his  needs  forced  him  to  call  an- 
other parliament,  which  stood  upon  its  ancient 
rights  and  petitioned  "  that  all  impositions  set 
without  the  assent  of  pariiament  may  be  quite 
abolished  and  taken  away"  and  that  a  law  be 
made  declaring  such  impositions  void.*  As  a  re- 
sult the  illegal  taxes  were  for  a  time  reduced, 
but  only  for  a  time. 

James  also  made  use  of  benevolences.  One 
taken  in  1622  well  shows  the  evil  nature  of 
the  thing.  The  judges,  sheriffs,  and  justices 
of  the  peace  were  commissioned  to  approach 
men  of  means  and  "to  move  them  to  join  will- 
ingly in  this  contribution  in  some  good  meas- 
ure." As  those  who  did  not  join  were  to  be 
reported  to  the  council,  the  "free  will"  of  the 
givers  must  have  been  very  small.'' 

The  character  of  the  reign  of  James  I  is  well 
illustrated  by  the  events  of  1621.  The  com- 
mons revived  its  right  to  impeach  ministers 
with  the  trial  of  Lord  Chancellor  Bacon  for 
corruption.'    It  also  assumed  to  deliberate  on 

*  Prothero,  Sd.  Stat.  (2d  ed.)  302. 
2  Ibid.  359.  '  Ibid.  334. 


238     THE  FINAL  STRUGGLE  FOR  LIBERTY 

several  public  questions.  The  king  thereupon 
forbade  parUament  to  "meddle  with  anything 
concerning  our  government  or  deep  matters 
of  state."  *  To  this  the  commons  protested 
that  the  crown  was  not  absolute  as  to  religion 
and  legislation,  that  parliament  was  the  high- 
est court  of  the  country  wherein  there  should 
be  freedom  of  speech  and  the  decision  of  con- 
tested elections.'  James  adjourned  the  par- 
liament," tore  the  protest  from  the  journal  of 
the  house  with  his  own  hands,  and  arrested  sev- 
eral members.  Out  of  all  the  turmoil  stands 
one  fact:  while  parliament  had  not  really  won 
many  victories,  it  had  reached  the  point  of 
intelligent  and  emphatic  protest. 

The  conflict  became  still  more  bitter  during 
the  reign  of  Charles  II,  whose  excesses  led  to 
a  violent  swinging  of  the  pendulum  to  the  op- 
posite extreme  of  lawlessness  where  a  faction 
of  the  people,  and  not  the  king,  ruled  uncon- 
stitutionally. The  trouble  began  with  the  first 
parHament  of  the  new  king  in  1625.  The  war 
with  Spain  required  a  good  deal  of  mon,ey,  but 
the  commons  were  cautious  and  granted  only 
two  small  subsidies.    What  offended  the  king 

*  Prothero,  Sd.  Stat.  (2d  ed.)  310. 
2  Ibid.  311,  313.  "  Ibid.  314. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     239 

most  was  that,  instead  of  granting  him  tunnage 
and  poundage  for  life  as  had  been  done  in  late 
reigns,  parliament  voted  it  for  only  a  year.  Dis- 
solution was  the  method  by  which  the  king 
expressed  his  feelings.  The  second  parliament 
in  1626  served  Charles  no  better,  for  instead 
of  granting  money,  it  began  to  inquire  into 
grievances,  especially  the  corruption  and  ex- 
tortions of  the  Duke  of  Buckingham.  The  king 
in  a  speech  warned  the  commons,  "Remem- 
ber that  Parliaments  are  altogether  in  my  power 
for  their  calling,  sitting,  and  dissolution;  there- 
fore as  I  find  the  fruits  of  them  good  or  evil, 
they  are  to  continue  or  not  to  be."  ^  Notwith- 
standing the  threat,  Buckingham  was  im- 
peached,^ whereupon  the  king  dismissed  par- 
liament. 

Charles  pretended  to  think  himself  so  ag- 
grieved by  the  carelessness  of  the  commons 
for  the  national  support  that  he  was  justified  in 
getting  money  as  best  he  might.'  He  ordered 
the  collection  of  a  free  gift*  and  of  a  forced 

*  Gardiner,  The  Constitvtional  DocumerUs  of  the  Puritan 
Revolution  (2d  ed.)  4,  6. 

2  Ibid.  7-44. 

°  See  his  statement  in  the  commission  for  a  forced  loan. 
Ibid.  51. 

*  Ibid.  46. 


240     THE  FINAL  STRUGGLE  FOR  LIBERTY 

loan,*  and  sent  out  a  commission  for  the  levy- 
ing of  tunnage  and  poundage  as  it  had  been 
taken  at  the  time  of  James  I's  death.'  These 
illegal  exactions  were  enforced  by  means  of  bil- 
leting soldiers  upon  the  people,  the  use  of  press- 
gangs,  and  imprisonment  by  the  Star  Cham- 
ber. Five  knights  who  had  been  so  imprisoned 
for  refusing  to  make  a  forced  loan  in  1627  ap- 
plied, under  their  common  law  right,  for  a  writ 
of  Habeas  Corpus.  It  was  returned  with  the 
indorsement,  "  confined  by  the  special  mandate 
of  the  king."  The  case  was  carried  before  the 
Court  of  King's  Bench,  where,  numerous  pre- 
cedents for  such  despotic  action  having  been 
adduced,  the  applicants .  were  denied  the  writ 
and  deprived  of  trial  by  jury.' 

Public  resentment  and  the  lack  of  money 
forced  the  king  in  1628  to  call  his  third  par- 
liament. In  spite  of  another  royal  threat,  the 
commons  again  turned  first  to  grievances,  and 
after  promising  to  vote  five  subsidies  to  the 
king,  deferred  further  action  while  they  spent 
two  months  in  perfecting  and  passing  the  Pe- 
tition of  Right.  After  reciting  the  illegal  ex- 
actions of  the  king  and  the  arbitrary  impris- 

*  Gardiner,  Const.  Doc.  (2d  ed.)  51. 

^  Ibid.  49.  '  3  State  Trials,  1,  51-59. 


THE  FINAL  STRUGGLE  FOR  LIBERTY      241 

onment,  billeting  of  soldiers  and  martial  law 
by  which  they  had  been  enforced,  parliament 
prayed  "that  no  man  hereafter  be  compelled 
to  make  or  yeild  any  guift,  loane,  benevolence, 
taxe,  or  such  like  charge,  without  common  con- 
sent by  Acte  of  Parliament;  and  that  none  be 
called  to  make  aunswere  or  take  such  oath, 
or  to  give  attendance,  or  be  confined,  or  other- 
wise molested  or  disquieted  concerning  the 
same  or  for  refusall  thereof;  and  that  no  free- 
man, in  any  such  manner  as  is  before  men- 
cioned,  be  imprisoned  or  deteined;  and  that 
your  Majestic  would  be  pleased  to  remove  the 
said  souldiers  and  marriners,  and  that  your 
people  may  not  be  soe  burthened  in  tyme  to 
come;  and  that  the  aforesaid  commissions  for 
proceeding  by  martiall  lawe  may  be  revoked  and 
annulled:  and  that  hereafter  no  commissions 
of  like  nature  may  issue  forth  to  any  person 
or  persons  whatsoever  to  be  executed  as  afore- 
said, lest  by  colour  of  them  any  of  your  Majes- 
tie's  subjects  be  destroyed  or  put  to  death  con- 
trary to  the  lawes  and  franchise  of  the  land.'* 
The  king  gave  an  unwilling  assent,  and  par- 
liament granted  the  five  subsidies  already  pro- 
mised. 

The  Petition  said  nothing  expressly  about 


242     THE  FINAL  STRUGGLE  FOR  LIBERTY 

illegal  customs,  but  parliament  had  not  over- 
looked them.  As  a  preliminary  to  a  grant  of 
tunnage  and  poundage  for  life,  a  remonstrance 
was  presented  asking  that  the  king  declare 
"the  receiving  of  tunnage  and  poundage,  and 
other  impositions  not  granted  by  parliament, 
a  breach  of  the  fundamental  liberties  of  this 
kingdom,  and  contrary  to  your  Majesty's  royal 
answer  to  the  said  Petition  of  Right."  *  This 
was  too  much  for  the  king's  patience,  and  par- 
liament was  prorogued.^  During  the  recess  of 
seven  months  Charles  continued  his  arbitrary 
taking  of  tunnage  and  poundage  contrary  to 
the  spirit,  if  not  the  letter,  of  the  Petition  of 
Right.  A  stormy  second  session  of  six  weeks  was 
marked  by  a  deadlock  between  the  king  and  the 
parliament  as  to  alleged  Popish  innovations  and 
the  taking  of  customs.  The  culmination  came 
in  the  resolution  of  the  commons,  made  while 
the  king's  guard  was  clamoring  at  the  locked 
door  for  admission  in  order  to  dissolve  par- 
liament, that  those  who  forwarded  new  and 
Popish  forms  or  who  had  anything  to  do  with 
the  taking  or  payment  of  tunnage  and  pound- 
age not  granted    by  parliament,  were  to  be 

*  Gardiner,  Const.  Doc.  (2d  ed.)  70. 
'  Ibid.  73. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     243 

reputed  capital  enemies  of  the  realm.*  The 
conviction  of  Eliot,  Holies,  and  Valentine,  the 
chief  sponsors  of  this  resolution,  ended  the  last 
legal  proceedings  ever  taken  for  speech  in  par- 
liament.' 

After  the  dissolution  of  parliament,  Charles 
showed  a  lack  of  good  faith  hardly  second  to 
that  of  John.  The  Petition  of  Right  was  wholly 
disregarded  and  the  king  reigned  as  an  autocrat 
for  eleven  years.  Without  a  parliament,  with 
a  bench  and  council  and  ministers  dependent 
upon  the  king's  good  will  for  appointment  and 
retention  in  office,  every  abuse  was  possible.' 
Prerogative  taxation  was  exercised  unspar- 
ingly for  the  financial  support  of  the  state, 
while  the  Star  Chamber  enforced  its  collec- 
tion and  in  general  overrode  all  attempts  at  the 
exercise  of  popular  rights.  The  Puritans  who 
opposed  the  king's  religious  proclamations 
and  all  who  resisted  taxation  suffered  fine,  im- 
prisonment, the  pillory,  or  mutilation. 

The  most  notable  abuse  of  the  period  was 
the  revival  of  ship  money,  which  was  nearly 

*  Gardiner,  Const.  Doc.  (2d  ed.)  82.    See  also  Ibid.  83,  the 
king's  Declaxation  Showing  the  Causes  of  the  Late  Dissolution. 
'^  1  Anson,  Law  and  Cust.  140. 
'  2  Anson,  Law  and  Cust.  27. 


244     THE  FINAL  STRUGGLE  FOR  LIBERTY 

related  to  the  Danegeld  and  had  anciently  been 
levied  upon  the  seaport  towns  under  the  name 
of  Shipgeld  for  the  equipment  of  a  navy  when 
invasion  threatened.  Now  the  tax  was  laid, 
not  only  without  any  real  pretense  that  the 
country  was  endangered,  but  also  on  inland 
communities  as  well  as  the  seaboard.  The  form 
of  the  old  levy  was  retained  by  ordering  each 
county  to  fit  out  a  ship  and  have  it  at  Ports- 
mouth on  a  day  named.  But  as  the  king  wanted 
money,  not  ships,  he  directed  the  sheriff  to 
levy  ratably  upon  the  individual  freeholders 
and  citizens.  Before  the  ship  money  was  de- 
manded from  the  inland  counties  in  1635,* 
Charles  induced  the  subservient  judges  to  give 
their  opinion  that  the  tax  was  valid,  an  opin- 
ion which  was  affirmed  in  1637.  Thus  armed, 
the  king  had  no  cause  to  fear  when  John  Hamp- 
den refused  to  pay  his  £1  and  appealed  to  the 
court,  which  decided  seven  to  five  against  the 
liberties  of  the  subject.  Nearly  all  of  the  judges 
held  that  the  king  might  be  forced  by  the  neces- 
sities of  defense  to  raise  money  without  par- 
liament. The  majority  held  the  king  to  be  the 
only  judge  of  the  necessity,  hence  found  that 

*  It  was  levied  on  seaports  in  1634,  while  in  1635  and  1637 
the  writs  were  extended  to  the  inland  counties. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     245 

there  was  imminent  danger.  Berkeley  went 
so  far  as  to  say  that  the  king  was  above  the 
law,  and  that  a  parliamentary  grant  was  not 
an  exercise  of  good  will,  but  of  absolute  duty.* 

Professor  Gneist  thinks  that  the  rock  upon 
which  this  aggression  finally  broke  was  the  re- 
sistance of  the  primary  forces  of  popular  gov- 
ernment in  the  counties.  The  mechanism  for 
carrying  out  despotism  was  in  the  last  instance 
lacking,  for  the  men  from  whom  sheriffs  and 
justices  of  the  peace  must  be  chosen  were  the 
well-to-do  landed  men,  who,  independent  by 
reason  of  their  property,  firmly  resisted  in- 
timidation. When  aggression  met  this  oppo- 
sition, it  gradually  became  exhausted,  until 
finally  the  Scottish  war  found  the  king  utterly 
unable  to  meet  expenses.  Then  in  1640  a 
parliament  was  called.' 

This  "Short  Parliament"  lasted  but  three 
weeks.  The  king  was  willing  to  give  up  ship 
money  for  a  large  grant,  but  the  commons 
refused  to  purchase  what  was  deemed  an  an- 
cient right.  Dissolution  followed,  and  for  sev- 
eral months  Charles  continued  the  autocracy. 
But  reverses  in  the  Scotch  campaign  forced 

1  3  State  Trials,  825,  846, 1065-1251. 

2  Gneist,  Eng.  Pari.  219,  220. 


246     THE  FINAL  STRUGGLE  FOR  LIBERTY 

the  king  to  yield  a  point,  and  on  November  3, 
1640,  the  "Long  ParHament"  began  to  sit. 
The  amount  of  important  business  done  within 
a  year  was  enormous.  In  order  that  the  king 
might  not  again  rule  without  a  parliament  there 
was  passed  the  Triennial  Act  providing  that 
if  the  king  neglected  for  three  years  to  call  a 
parKament,  the  peers  might  issue  writs,  and 
that  if  the  peers  also  neglected  to  do  so,  the 
constituencies  might  of  their  own  authority 
elect  a  House  of  Commons.*  It  was  also  en- 
acted that  the  present  parliament  should  not 
be  dissolved  without  its  own  consent.'  The 
prime  minister,  Strafford,  was  first  impeached 
and  then  convicted  of  treason  by  an  act  of  at- 
tainder.' Ship  money  was  by  statute  declared 
illegal,  and  the  sentence  against  Hampden 
reversed.*  Tunnage  and  poundage  was  granted 
to  the  king  and  by  statute  declared  to  be  under 
the  authority  of  parHament.^  Most  import- 
ant of  all,  the  chief  weapons  of  prerogative 
were  taken  away  by  the  abolition  of  the  Star 
Chamber"   and  the  Court  of  High  Commis- 

1  St.  16  Car.  I,  c.  1.  '  g^  jg  ^gj.^  j^  c.  7. 

'  5  Statutes  of  the  Realm,  177. 

*  St.  17  Car.  I,  c.  14.  «  St.  16  Car.  I,  c.  8. 

•  St.  17  Car.  I,  c.  10. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     247 

sion.^     With  this  came  the  restoration  of  the 
writ  of  Habeas  Corpus.' 

A  great  victory  had  been  won  and  the  an- 
cient constitution  restored,  but  matters  could 
not  stop  here.  Charles  had  assented  to  all  this 
legislation  with  very  poor  grace,  and  showed 
a  disposition  to  override  it  when  opportunity 
should  offer.  Yet  many  of  the  constitutional 
party  thought  the  work  was  done  and  failed 
to  see  that  against  a  king  ready  to  repudiate 
the  unwilling  affirmation  he  had  given  the 
acts  of  parliament,  even  more  safeguards  were 
necessary.  An  appeal  to  the  people  was  drawn 
up  under  the  name  of  the  Grand  Remon- 
strance,' which  set  forth  the  causes  for  fear,  and 
recommended,  among  other  things,  new  safe- 
guards against  Papists,  an  oath  by  the  judges 
to  support  the  Petition  of  Right,  and  the  em- 
ployment of  sworn  ministers  and  councilors 
in  whom  parliament  could  confide.  This  would 
have  taken  from  Charles  almost  his  last  wea- 
pons of  oppression.  So  extreme  a  measure 
was   contrary,  however,  to  the  ideas  of  some 

*  St.  17  Car.  I,  c.  11.  Since  the  time  of  Elizabeth,  this  court 
had  in  ecclesiastical  matters  been  operating  upon  the  same  lines 
as  the  Star  Chamber. 

2  St.  17  Car.  I,  c.  10,  s.  vi. 

'  Gardiner,  Canst.  Doc.  (2d  ed.)  202. 


248     THE  FINAL  STRUGGLE  FOR  LIBERTY 

of  the  more  conservative  opponents  of  the  king, 
and  the  remonstrance  passed  by  only  eleven 
votes.  Of  course  the  king  denied  the  petitions 
which  accompanied  the  remonstrance.*  Fur- 
thermore, he  presumed  so  far  as  to  have  one 
member  of  the  House  of  Lords  and  five  mem- 
bers of  the  House  of  Commons  impeached  for 
treason  by  the  attorney-general,'  an  irregular 
proceeding  which  was  resented  by  the  com- 
mons as  an  invasion  of  the  peculiar  privilege 
of  beginning  impeachments,  which  lay  in  that 
body.' 

In  its  distrust  of  the  king  and  well-founded 
fear  that  he  would  turn  the  army  against  it, 
parliament  passed  an  ordinance  placing  the 
militia  under  parUamentary  control.*  Charles 
issued  a  proclamation  forbidding  any  action 
under  this  ordinance,'  but  parliament  de- 
clared the  proclamation  void.'  Both  sides  now 
completed  preparations  for  war,  the  king  is- 
suing commissions  of  array,'  parliament  voting 
to  raise  an  army.'  The  parliamentary  party,  in 
the  first  stages  of  the  civil  war,  included  about 

*  Gardiner,  C(mst.  Doc.  (2d  ed.)  233. 
2  Ibid.  236.  «  Ibid.  254. 
"  Ibid.  237.                        ^  Ibid.  258. 

*  Ibid.  245.  «  Ibid.  261. 
»  Ibid.  248, 


THE  FINAL  STRUGGLE  FOR  LIBERTY     249 

two  thirds  of  the  nation,  the  larger  part  of  the 
prosperous  towns  and  the  free  peasantry.  It 
had  a  good  portion  of  the  nobihty,  but  its  lead- 
ers were  not  so  much  nobles  as  men,  like  Hamp- 
den, of  the  landed  gentry,  and  Cromwell,  of 
the  solid  middle  class.  The  royal  party  con- 
tained about  half  of  the  nobility  and  old  gen- 
try.^ 

The  parliamentary  party,  already  forsaken 
by  many  of  the  more  conservative  men  who 
had  at  first  opposed  the  king,  was  soon  even 
more  seriously  divided.  In  the  army  there  was 
a  preponderance  of  men  holding  the  extreme 
Puritanical  and  Independent  views  of  religion 
and  politics.  Although  really  a  minority  in  the 
nation,  they  were  yet  able,  as  the  military  force 
in  time  of  war,  to  exercise  an  overwhelming 
authority.  Charles's  unbroken  claim  to  divine 
right  throughout  the  strife  and  his  evident 
lack  of  intention  to  better  his  ways  finally  forced 
the  army  to  extremes.  Imbued  as  they  were 
with  the  reHgious  idea,  the  Puritans  were  able 
to  say  that  the  right  of  the  ruler,  so  far  as  it 
was  divine,  was  founded  in  grace,  and  to  draw 
the  conclusion  that  if  the  ruler  sinned,  he  fell 
from  grace  and  lost  the  right  to  rule.    It  was 

^  Gneist,  Eng.  Pari.  221. 


250     THE  FINAL  ^STRUGGLE  FOE  LIBERTY 

even  said  that  there  was  such  a  thing  as  high 
treason  of  the  king  against  the  people.  The 
Puritans  have  been  termed  fanatical,  and  it 
may  be  admitted  that  they  were,  at  least  in 
the  sense  that  they  were  in  advance  of  their 
time. 

Finally  it  seemed  to  the  army  that  the  only 
solution  of  the  difficulty  was  to  put  its  new 
theory  into  execution  and  to  rid  the  country 
of  the  king.  The  majority  of  the  commons 
refused  to  depart  from  the  kingly  idea,  and  on 
December  6,  1648,  declared  for  terms  of  peace 
by  a  vote  of  120  to  83.  Upon  this  the  army 
imprisoned  47  members  and  forbade  96  others 
to  attend  pariiament.  The  minority  of  the 
commons  left  continued  to  sit  as  the  "Rump 
Parliament,"  and  on  January  6,  1648-9,  passed 
an  act  *  erecting  a  court  before  which  Charies  I 
was  tried  and  convicted  of  treason.'  The  same 
"pariiament"  abolished  the  office  of  king,' 
did  away  with  the  House  of  Lords,*  and  de- 
clared the  people  of  England  to  be  a  "Com- 
monwealth and  Free  State." ' 

Although   Cromwell  was  an   able  adminis- 

*  Gardiner,  Const.  Doc.  (2d  ed.)  357. 
'  Ibid.  371-380.  *  Ibid.  387. 

»  Ibid.  384.  ^  Ibid.  388. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     251 

trator  and  the  first  ruler  of  his  time,  govern- 
ment by  the  minority  was  fated  from  the  be- 
ginning to  shipwreck.  ParUamentary  govern- 
ment was  desired  and  sought  by  the  Protector, 
but  was  impossible  while  the  majority  opposed 
the  new  regime.  Military  rule  was  therefore 
the  only  expedient  to  keep  out  royalty.  Under 
it  discontent  arose  and  increased.  The  middle 
class  could  fight,  but  had  neither  the  native 
ability  nor  the  experience  in  national  affairs 
to  mould  the  constitution  anew.  The  conserv- 
ative landed  gentry  who  had  been  justices  of 
the  peace  offered  a  hostile  police  administra- 
tion. If  they  were  displaced  by  the  newer  men 
of  inexperience,  lack  of  authority  resulted.  The 
conservatives  were  also  too  well  represented 
upon  the  juries  for  the  ordinances  of  the  Rump 
to  be  well  enforced.  A  military  government 
was  imperatively  required,  or  the  innovators 
must  fall.  The  army  required  money,  and  that 
meant  high  taxes.  The  county  administration 
found  difficulty  in  collecting  them,  and  mili- 
tary assessment  was  resorted  to.  As  the  juries 
often  refused  to  convict  those  who  declined  to 
pay  their  taxes,  a  Court  of  High  Justice  on 
lines  in  some  respects  like  the  Star  Chamber 
had  to  be  erected.   In  1655  eleven  miUtary  gov- 


252     THE  FINAL  STRUGGLE  FOR  LIBERTY 

emors  were  put  over  the  country  with  power 
to  levy  troops,  collect  taxes,  imprison  suspi- 
cious persons,  and  inquire  into  the  private  life 
of  the  clergy  and  schoolmasters.*  The  Protect- 
orate broke  when  it  met  the  resistance  of  the 
people  in  the  counties.  It  was  just  there  that 
Charles  I  had  come  to  grief,  as  must  every  man 
or  movement  that  is  supported  by  only  a  mi- 
nority. 

The  restoration  of  the  Stuarts  to  the  throne 
after  the  popular  extremes  of  the  Common- 
wealth and  Protectorate  was  naturally  followed 
by  so  great  a  reaction  that  some  extremes  of 
prerogative  followed,  yet  these  were  not  so 
great  as  might  have  been  feared.  Charles  II 
made  no  attempts  to  legislate  in  council,  to 
collect  illegal  customs,  or  to  take  benevolences 
and  forced  loans.'  He  did  not  dare  to  interfere 
with  freedom  of  speech  or  to  pack  the  com- 
mons by  creating  new  boroughs,  so  parHament 
found  itself  supreme  in  legislation  and  taxa- 
tion except  in  so  far  as  the  king  could  influ- 
ence its  members  by  places,  pensions,  and 
bribes." 

In  control  of  administration,  however,  par- 

»  Gneist,  Eng.  Pari.  226-231.  '  Ibid.  241. 

'  1  Anson,  Law  and  Ctist.  284. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     253 

liament  found  itself  without  the  authority  which 
past  events  showed  that  it  needed.  By  means 
of  adding  appropriating  clauses  to  grants  of 
subsidies  the  commons  did  indeed  accom- 
plish much,  but  the  king  still  had  the  appoint- 
ment of  councilors  and  judges,  whom  he  kept 
under  his  personal  influence.*  The  justices 
he  used  to  intimidate  juries  for  the  conviction 
of  those  whom  he  mistrusted.*  Charles  II  di- 
vided the  Privy  Council  into  committees  which 
dealt  with  the  separate  departments  of  admin- 
istration. Hating  prolonged  discussion,  he 
limited  the  consideration  of  matters  of  gen- 
eral pohcy  to  a  few  men  constituting  a  "cabi- 
net" which  became  notorious  under  the  name 
of  "Cabal."  This  he  used  for  secret  negotia- 
tions with  Louis  XIV,  from  whom  he  obtained 
money  for  remaining  neutral  in  the  conflict 
between  France  and  Holland,  although  parlia- 
ment favored  the  latter.  These  abuses  aroused 
the  commons  to  undertake  again  the  impeach- 
ment of  ministers.  Charles  then  turned  his 
attention  to  methods  of  controlling  parlia- 
ment. Unable  to  corrupt  the  members,  he  tried 
to  corrupt  the  electorate,  but  with  small  suc- 

*  Gneist,  Eng.  Pari.  242,  243. 
3  Ibid.  246,  247. 


254     THE  FINAL  STRUGGLE  FOR  LIBERTY 

cess  in  the  counties.  In  the  boroughs  he  suc- 
ceeded better.  There  the  electorate  had  always 
been  subservient  to  the  landed  gentry,  and  now 
the  king  substituted  himself  as  the  paramount 
influence.  His  method  was  ingenious:  by 
means  of  proceedings  in  the  nature  of  quo 
warranto^  town  privileges  were  declared  for- 
feit, and  new  charters  were  granted  with  muni- 
cipal boards  revocable  by  the  crown.  Yet  an 
attempt  was  made  in  1679  to  obtain  a  Privy 
Council  which  should  act  in  harmony  with 
parliament.  Sir  William  Temple  organized  a 
council  of  thirty,  including  a  number  of  parlia- 
mentary members,  but  this  rapidly  divided  into 
special  committees,  with  a  small  inner  group 
discussing  general  affairs  outside  of  the  meet- 
ing of  the  whole.  Just  as  before,  there  was  an 
irresponsible  cabinet.  Never  again  was  there 
an  attempt  to  get  a  responsible  Privy  Council, 
and  that  body  soon  ceased  to  be  an  important 
part  of  the  constitution.* 

The  last  stage  of  the  struggle  for  liberty  came 
in  the  few  years  when  James  II  was  king.  The 
particular  abuse  of  prerogative  of  which  he 
was  guilty  was  the  exercise  of  the  dispensing 

*  Gneist,  Eng.  Pari.  244-246,  249,  250;  2  Anson,  Law  and 
Oust.  95-97;  Dicey,  Priv.  Coun.  135-142. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     265 

and  suspending  powers.  Dispensations  had 
always  been  granted  by  the  crown  from  the 
operation  of  penal  laws,  and  often  of  neces- 
sity, for  sometimes  inconvenience  or  hardship 
would  arise  if  the  laws  were  enforced  in  par- 
ticular cases  which  arose  while  parliament 
was  not  in  session  to  offer  a  remedy.  But  the 
abuses  had  far  surpassed  the  advantages  of  the 
exercise  of  such  power,  for  it  had  been  oftenest 
used  for  the  favorites  of  the  king  and  for  the 
upbuilding  of  the  personal  influence  of  the 
crown.  Pardons  had  been  freely  granted  for 
all  sorts  of  offenses,  even  petty  crimes.*  The 
case  of  Thomas  v.  Sorrell,'  decided  by  Vaughan, 
C.  J.,  in  1673  laid  down  the  rule  that  a  dispen- 
sation from  a  penal  statute  might  be  granted, 
before  or  after  an  illegal  act,  in  the  case  of  an 
individual  breach  by  which  no  man  was  in- 
jured, or  in  case  of  a  continuous  breach  of  a 
penal  statute  enacted  for  the  sole  benefit  of 
the  king. 

As  a  preliminary  to  what  seems  to  have  been 
a  campaign  for  the  restoration  of  Catholicism 
by  an  army  officered  by  Romanists,  James, 
by  the  dismissal  of  some  judges  and  the  ap- 

*  1  Anson,  Law  and,  Cud.  265,  266. 

*  Vaughan's  Reports,  330. 


256     THE  FINAL  STRUGGLE  FOR  LIBERTY 

pointment  of  more  servile  ones,  got  a  bench 
which  would  declare  for  prerogative.  He  then 
commissioned  Sir  Edward  Hales,  a  Catholic, 
to  be  colonel,  and  dispensed  with  the  statutory 
oath  of  conformity  to  the  EngUsh  Church.  The 
collusive  action  of  Godden  v.  Hales,*  which 
was  brought  to  recover  the  penalty  of  .£500, 
was  decided  by  eleven  of  the  twelve  judges 
in  favor  of  the  dispensing  power.  The  statute 
in  question  not  being  for  the  sole  benefit  of  the 
king  but  for  the  protection  of  the  nation  against 
Papacy,  the  decision  cannot  be  reconciled  with 
that  of  Thomas  v.  Sorrell.'  The  king  followed 
up  his  advantage  by  the  appointment  of  Cath- 
olics as  Privy  Councilors  and  holders  of  bene- 
fices, and  those  who  resisted  his  interference 
in  the  latter  cases  were  deprived  of  office  by 
the  authority  of  a  Court  of  Commissioners  for 
Ecclesiastical  Causes  erected  by  James,  in  de- 
fiance of  statute,  upon  the  lines  of  the  old  High 
Commission. 

But  the  king  did  not  confine  himself  to  dis- 
pensing with  the  oath  of  supremacy  in  par- 
ticular cases.  Under  cover  of  a  "Declaration 
for  Liberty  of  Conscience"  he  assumed  to  sus- 

*  2  Shower's  Reports,  475;  11  State  Trials,  1165. 
'  1  Anson,  Law  and  Cust.  270. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     257 

pend  the  operation  of  the  penal  statute  en- 
tirely. Such  an  odious  claim  to  superiority 
to  the  law  was  insufferable,  and  yet,  when  the 
question  of  its  legality  was  collaterally  raised 
before  the  King's  Bench  in  the  Seven  Bishops' 
Case,*  the  judges  divided  two  and  two.  The 
vital  point  was  well  stated  when  Powell,  J., 
said,  "If  this  be  once  allowed  of,  there  will 
need  no  parliament,"  but  the  danger  of  a  Cath- 
olicized standing  army  was  undoubtedly  the 
immediate  cause  of  popular  indignation  against 
the  king  and  of  the  Revolution  of  1688.  This 
revolution  was  accomplished  without  the  ex- 
tremes which  attended  the  overthrow  of  James's 
father,  and  consequently  it  brought  to  a  close 
the  long  struggle  between  the  people  and  the 
prerogative.  Constitutional  progress  has  indeed 
been  made  since  then,  but  the  main  principles 
defining  the  rights  of  the  people  found  final 
statement  in  the  Bill  of  Rights  passed  by  the 
Convention  Parliament  in  1689.  This  act  de- 
clared, as  ancient  rights  and  liberties : 

"  1.  That  the  pretended  power  of  suspending 
of  laws,  or  the  execution  of  laws,  by  regal  au- 
thority, without  consent  of  parliament,  is  illegal. 

"2.  Tb-"*  the  pretended  power  of  dispens- 

*  12  State  Trials,  183. 


258     THE  FINAL  STRUGGLE  FOR  LIBERTY 

ing  with  laws,  or  the  execution  of  laws,  by  regal 
authority,  as  it  hath  been  assumed  and  ex- 
ercised of  late,  is  illegal.^ 

"8.  That  the  commissions  for  erecting  the 
late  Court  of  Commissioners  for  Ecclesias- 
tical Causes,  and  all  other  commissions  and 
courts  of  like  nature,  are  illegal  and  pernicious. 

"4.  That  levying  of  money  for  or  to  the  use 
of  the  crown  by  pretense  of  prerogative,  with- 
out grant  of  parliament,  for  longer  time  or 
in  other  manner  than  the  same  is  or  shall  be 
granted,  is  illegal. 

"5.  That  it  is  the  right  of  the  subject  to  pe- 
tition the  king,  and  all  commitments  and  prose- 
cutions for  such  petitioning  are  illegal. 

"6.  That  the  raising  or  keeping  a  standing 
army  within  the  kingdom  in  time  of  peace, 
unless  it  be  with  consent  of  parliament,  is  against 
law. 

"7.  That  the  subjects  which  are  Protest- 
ants may  have  arms  for  their  defense  suitable 
to  their  conditions,  and  as  allowed  by  law.^ 

^  See  infra,  clause  12.  The  possibility  of  such  abuse  of  pre- 
rogative being  again  declared  legal  by  a  packed  court  was  re- 
moved by  the  Act  of  Settlement,  Stat.  12  and  13  Will.  HI,  c.  2, 
s.  iii  (7),  to  the  effect  that  judges  be  removable  only  by  address 
of  both  houses  of  parliament. 

*  The  right  of  self-defense  by  weapons  had,  in  this  time  of 


THE  FINAL  STRUGGLE  FOR  LIBERTY     259 

"8.  That  elections  of  members  of  parlia- 
ment ought  to  be  free.* 

"9.  That  the  freedom  of  speech,  and  de- 
bates or  proceedings  in  parliament,  ought  not 
to  be  impeached  or  questioned  in  any  court  or 
place  out  of  parliament. 

"10.  That  excessive  bail  ought  not  to  be 
required  nor  excessive  fines  imposed;  nor  cruel 
and  unusual  punishment  inflicted. 

"11.  That  jurors  ought  to  be  duly  impaneled 
and  returned,  and  jurors  which  pass  upon  men 
in  trials  for  high  treason  ought  to  be  free- 
holders. 

"12.  That  all  grants  and  promises  of  fines 
and  forfeitures  of  particular  persons  before 
conviction,  are  illegal  and  void. 

"13.  And  that  for  redress  of  all  grievances, 
and  for  the  amending,  strengthening,  and  pre- 
serving of  the  laws,  parliament  ought  to  be 
held  frequently."  ' 

fear  of  Popery,  to  be  restricted  to  those  who  would  not  use  them 
to  overthrow  the  state. 

*  Corruption  in  elections  is  always  possible  so  long  as  the 
electorate  lacks  civic  interest  or  moraHty.  It  did  not  cease  with 
the  Bill  of  Rights.  The  aboUtion  of  rotten  boroughs  in  1832 
practically  ended  the  chance  of  corruption  by  the  crown. 

'  The  Triennial  Act  of  the  Long  Parliament  was  repealed  in 
1664  as  subversive  of  prerogative  in  allowing  writs  to  issue  from 
other  sources  than  the  crown.  In  its  place,  it  was  enacted  that 


260     THE  FINAL  STRUGGLE  FOR  LIBERTY 

Reference  has  several  times  been  made  to 
the  cabinet  system.  Although  the  struggle  for 
liberty  really  ended  with  the  Bill  of  Rights  and 
the  cabinet  is  a  later  development,  its  import- 
ance, as  the  means  by  which  parliament  got 
control  of  the  executive  and  strengthened  it- 
self in  legislation  and  taxation,  seems  to  de- 
mand some  consideration.  After  the  Revolu- 
tion of  1688,  the  commons  deprived  the  king 
of  the  sole  right  to  control  the  expenditures  of 
revenue  by  extending  the  principle  of  appro- 
priation jfirst  used  under  Charles  II.  The  king 
was  given  an  allowance,  called  the  civil  list,  to 
meet  the  expenses  of  the  household  and  civil 
departments,  while  parliament  each  year  gave 
its  consent  (as  required  by  the  Bill  of  Rights) 
to  the  maintenance  of  the  army  and  navy,  at 
the  same  time  voting  the  sums  required  and 
paying  them  out.  Parliament  thus  kept  the 
executive  always  under  scrutiny. 

The  new  power  of  the  commons  made  it 

the  sitting  and  holding  of  parliament  should  not  be  intennitted 
for  over  three  years.  The  Triennial  Act  of  1694  required  the 
crown  to  issue  writs  within  three  years  after  the  dose  of  each 
parUament.  The  prerogative  still  Ues  with  the  king,  but  he  is 
directed  by  statute  to  exercise  it  and  is  compelled  to  call  parUa- 
ment annually,  otherwise  he  woidd  have  no  standing  army  and 
(without  appropriations)  could  not  pay  two  thirds  of  the  na- 
tion's charges.   1  Anson,  Law  and  Cud.  246-248. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     261 

necessary  for  the  king  to  choose  ministers  who 
would  be  approved  by  the  majority  of  parHa- 
ment  and  would  act  in  accordance  with  its 
wishes.  The  king  has  since  1688  found  the  sup- 
port of  the  majority  essential.  In  theory  his 
ministers  are  still  his  servants,  "but  they  are 
chosen  for  him  by  the  unmistakable  indica- 
tion of  the  popular  wishes  at  the  polling  booth 
or  in  the  division  lobby."  Because  the  king 
must  have  a  majority  to  pass  the  Army  Bill 
and  appropriations,  he  must  defer  to  the  popu- 
lar desires  as  to  ministers  and  their  policies. 

So,  too,  deprived  of  a  packed  parliament 
and  the  dispensing  power,  he  may  initiate 
through  his  ministry  only  such  legislation  as 
the  majority  will  approve.  If  he  dislikes  a  bill 
passed  by  parliament,  he  must  yet  approve 
it,  hence  there  has  been  no  veto  for  nearly  two 
centuries.  His  only  chance  of  defeating  legis- 
lation, and  that  is  a  small  one,  is  to  dismiss 
the  ministry  which  insists  upon  its  passage 
and  appoint  a  new  one.  If  the  new  ministry 
is  not  supported  by  parliament,  then  the  legis- 
lature may  be  dissolved  and  an  appeal  made 
to  the  people.  But  the  newly  elected  parlia- 
ment may  prove  to  be  unfavorable  to  the  king, 
and  then  he  must  yield  to  its  will,  for  its  friend- 


262     THE  FINAL  STRUGGLE  FOR  LIBERTY 

ship  is  indispensable.*  Besides  confirming 
parliament  in  its  claims  to  control  legislation, 
taxation,  and  administration,  the  cabinet  sys- 
tem has  also  decided  the  problem,  which  arose 
in  connection  with  the  dispensing  power,  as 
to  who  should  act  in  emergencies  when  there 
is  no  parKament.  Now  that  the  executive  is 
answerable  to  parliament,  he  and  his  ministers 
may  safely  be  allowed  to  go  forward  and  do 
what  circumstances  demand.* 

Again  the  question  arises  as  to  the  influence 
of  the  landed  man  upon  the  events  of  Tudor 
and  Stuart  times  which  made  the  people  the  real 
sovereign  power  of  the  nation,  and  established 
definitively  those  principles  of  liberty  which 
are  to-day  enjoyed  by  the  citiiiens  of  England 
and  the  United  States  of  America.  We  have 
already  seen  that  the  landed  men  of  the  mid- 
dle class  became  the  leaders  in  the  popular 
movements  of  the  Stuart  period,  and  that  in 
the  counties  they  offered  the  resistance  which 
finally  broke  down  alike  the  despotic  mon- 
archy of  Charles  I  and  the  miUtary  dictator- 
ship of  the  Protector.  It  may  be  added  that 
the  character  of  the  electorate  and  the  quali- 

*  1  Anson,  Law  and  Oust.  27,  254,  255;  2  Ibid.  34-39. 
2  1  Ibid.  283. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     263 

fications  for  membership  in  parliament  had 
remained  without  change  from  mediaeval  times. 
Sir  Thomas  Smith,  in  his  Commonwealth  of 
England,  written  in  1565,  enumerated  four 
classes  of  men.  First  came  the  barons,  of  an 
annual  revenue  of  .£1000;  secondly,  the  knights 
of  a  yearly  income  of  ^40  from  free  lands  and 
the  esquires  and  lesser  gentlemen  "who  can 
live  idly  and  without  manual  labour."  All 
these  were  of  the  gentry.  Thirdly,  there  were 
the  yeomen,  legales  homines,  of  the  annual  in- 
come of  4iOs.  from  free  land.  Finally,  the  au- 
thor mentioned  "the  men  which  do  not  rule," 
those  "which  have  no  free  land.  These  have 
no  voice  nor  authority  in  our  commonwealth, 
and  no  account  is  made  of  them,  but  only  to 
be  ruled."  » 

In  the  Middle  Ages,  it  was  the  first  of  these 
classes  which  furnished  the  leaders  in  the  bat- 
tles for  liberty,  but  we  have  already  seen  how 
the  barons  lost  their  predominance  in  the  na- 
tion and  how  the  cause  of  Uberty  languished 
until  the  second  class  developed  powers  of 
leadership  and  mastery.  Two'thirds  of  the 
earls   and  barons  of   1640  had  been  created 

*  Smith,  The  Commonwealth  of  England  (ed.  1589)  bk.  i, 
chaps.  17-24,  quoted  in  Prothero,  Sel.  Stat.  (2d  ed.)  176. 


264     THE  FINAL  STRUGGLE  FOR  LIBERTY 

within  a  generation.  Among  them  could  not 
be  found  the  strong  independence  which  would 
assert  itself  against  royal  aggression.  On  the 
other  hand  it  has  been  estimated  that  the  com- 
bined income  of  the  members  of  the  House 
of  Commons  of  the  Long  ParUament  was  £400,- 
000,  and  that  their  landed  property  was  three 
times  greater  than  that  of  the  lords.*  Truly 
the  landed  man  was  still  in  power  when  the 
final  battles  were  fought,  even  though  his  mo- 
tive had  doubtless  ceased  to  be  so  largely  the 
protection  of  his  land  as  it  anciently  had  been. 
And  yet  the  landed  man  did  at  times  act  for 
selfish  ends,  as  when  in  1660  he  secured  the 
abolition  of  military  tenure  and,  instead  of 
substituting  a  land-tax,  made  up  the  deficiency 
in  taxation  by  an  excise  on  beer.  That  the  last- 
named  action  was  taken  by  a  plurality  of  two 
votes  indicates,  however,  a  more  catholic  spirit 
than  had  once  been  abroad. 

While  political  power  had  been  descending 
the  territorial  scale,  it  did  not  pass  from  the 
gentry.  Although  the  lords  were  no  longer  of 
overshadowing  influence,  the  landed  gentry  were 
the  ruling  class  and  generally  controlled  the 
lower  class  of  the  electorate.    Deprived  of  their 

*  Gneist,  Eng.  Pari.  257,  258. 


THE  FINAL  STRUGGLE  FOR  LIBERTY     265 

power  in  borough  elections  by  the  new  char- 
ters of  Charles  II,  the  gentry  resumed  it  when 
James  II  withdrew  the  charters  and  restored 
the  old  order  of  things.  The  merchant  class,  al- 
though they  had  grown  to  great  wealth,  never  had 
in  parliament  a  representation  which  could  make 
itself  overwhelmingly  felt,  and  only  in  London 
and  a  few  other  large  trade  towns  did  they 
much  influence  the  electorate.*  To  Sir  Wil- 
liam Temple's  mind,  one  of  the  great  advan- 
tages of  his  council  was  the  wealth  of  its  mem- 
bers, for  "authority  is  observed  much  to  fol- 
low land."  2 

Nor  has  the  landed  man  since  then  entirely 
lost  his  preponderant  influence  in  the  nation. 
The  reform  acts  of  the  nineteenth  century, 
while  greatly  enlarging  the  electorate,  have  left 
it  in  the  hands  of  owners,  users,  and  inhabit- 
ants of  lands,  houses,  and  lodgings  of  certain 
values,'  so  although  there  is  practically  a  near 
approach  to  manhood  suffrage,  the  land-idea 
has  not  yet  entirely  passed.  And  even  as  the 
landed  gentry  of  the  seventeenth  century  had 

*  Gneist,  Eng.  Pari.  25S-261. 

^  Temple,  Memoirs  (ed.  1720)  233;  cited,  Dicey,  Priv.  Coun. 
140. 
'  1  Anson,  Law  and  Cud.  91, 102-108. 


266     THE   FINAL  STRUGGLE  FOR  LIBERTY 

a  preponderant  influence  in  politics  in  spite 
of  the  fact  that  others  might  vote,  so  now,  with 
a  franchise  extended  below  the  freeholders,  the 
landed  gentry  retain  a  power  greatly  dispropor- 
tionate to  their  numbers.  The  landed  man 
who  stood  as  a  leader  in  the  winning  of  civil 
liberty  stands  to-day  as  perhaps  its  most  con- 
servative and  powerful  defender. 


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